Bell v. Duckworth

• Decision Date: 21 December 1988
• Docket Number: No. 87-2591,87-2591
• Citation: 861 F.2d 169
• Parties: Kirk Bradley BELL, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 169

861 F.2d 169

Kirk Bradley BELL, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.

No. 87-2591.

United States Court of Appeals, Seventh Circuit.

Submitted Aug. 30, 1988.

Decided Nov. 8, 1988.

Rehearing and Rehearing En Banc Denied Dec. 21, 1988.

Kirk Bradley Bell, Michigan City, Ind., pro se.

David A. Nowak, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee.

Before POSNER, MANION and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Kirk Bell was convicted of murder in an Indiana state court. After exhausting his state remedies he brought this habeas corpus action. The district court dismissed and he appeals. The appeal has no merit; we write only to make as clear as we can that procedural errors committed in the course of a state criminal trial are not a ground for federal habeas corpus. Smith v. Phillips, 455 U.S. 209, 221 (1982). Only constitutional error is a ground. This fundamental limitation on the habeas corpus jurisdiction may not be got round by the facile equation of state procedural error to due process denial. See Jones v. Thieret, 846 F.2d 457, 459-61 (7th Cir.1988).

That is Bell's tactic. He complains to begin with about the judge's refusal to order the prosecution witnesses to leave the courtroom during the voir dire of the jury. He claims that the witnesses may have been contaminated by hearing the questions asked of prospective jurors. (In fact the prosecutor had told his witnesses to remain outside the courtroom until called to testify; and there is no evidence that any of those witnesses were in the courtroom during the voir dire. But that is a detail.) A refusal to exclude ("separate") witnesses until they testify is not a denial of due process. Separation or sequestration of witnesses, on which see Geders v. United States, 425 U.S. 80, 87 (1976); Fed.R.Evid. 615, is a long-established and well-recognized measure designed to increase the likelihood that testimony will be candid. But the due process clause does not incorporate every refinement of legal procedure designed to make trials fairer or more accurate--not even one hallowed by time. See, e.g., Watson v. Camp, 848 F.2d 89 (7th Cir.1988). It forbids only egregious departures (illustrated by Walberg v. Israel, 766 F.2d 1071 (7th Cir.1985)) from accepted standards of legal justice. Hill v. United States, 368 U.S. 424, 428 (1962).

Bell's next complaint is about the denial of a continuance to enable a defense to be prepared against a prosecution witness who first appeared the day the trial began, having been a fugitive till then. In some circumstances such a ruling could be a denial of due process: if the witness was crucial to the prosecution and the defense needed time to develop evidence to counter his testimony. This witness's testimony was important (he was an eyewitness), but defense counsel had and exercised the opportunity to cross-examine him fully; and to this day there is no suggestion of what defense against his testimony Bell's counsel might have developed if given a continuance. Cf. United States ex rel. Searcy v. Greer, 768 F.2d 906, 913 (7th Cir.1985).

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