Harris v. Hardy

• Decision Date: 23 May 2012
• Docket Number: No. 10–1434.,10–1434.
• Parties: James HARRIS, Petitioner–Appellant, v. Marcus HARDY, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

680 F.3d 942

James HARRIS, Petitioner–Appellant,

v.Marcus HARDY, Warden, Respondent–Appellee.

No. 10–1434.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 25, 2010.

Decided May 23, 2012.

Geneva Lynette Penson (argued), Attorney, Law Office of Geneva L. Penson, LLC, Aurora, IL, for Petitioner–Appellant.

Erica Seyburn (argued), Attorney, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent–Appellee.

Before WOOD, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

In 1984 James Harris was convicted of murder, attempted murder, aggravated battery, and attempted armed robbery. He was sentenced to death on the murder conviction and to terms of imprisonment on the other crimes. His sentence later was commuted to life imprisonment by Illinois Governor George Ryan. Harris asks us to review the district court's decision denying his petition for habeas corpus. He raises three grounds for relief. He first contends that the State exercised peremptory challenges based on race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Next he contends that defense counsel rendered ineffective assistance of counsel in failing to establish at the Batson hearing the race of two venirepersons on whom the State exercised peremptory strikes. Finally, he asserts that the State failed to disclose impeachment evidence at his second sentencing hearing in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Because it was unreasonable for the state courts to credit the prosecutor's proffered reasons for several peremptory challenges, we conclude that the petition should be granted.

I. Background

In April 1984, a Cook County, Illinois, jury convicted petitioner Harris of the murder of Jesse James, Sr., the owner of a tavern on Chicago's south side, and the attempted murder of Theresa Woods, who worked as a waitress at the tavern. The jury also convicted Harris of aggravated battery and two counts of attempted robbery arising out of the same incident.

The jury selection took place over the course of two days. We will explain the process in general and then discuss the particulars of the peremptory strikes that are at issue in this case. The court used a variation of the “jury box” system for jury selection, see, e.g., Roger Allan Ford, Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts, 17 Geo. Mason L.Rev. 377, 383–87 (2010), and the parties do not contend that the process was inconsistent with the Illinois criminal trial court rules regarding voir dire and jury selection. SeeILCS S.Ct. Rule 431 (1971); ILCS S.Ct. Rule 434 (1982). Of course, the number of jurors that ultimately would be seated was twelve, not including alternates.

As it was explained in the record in the trial court, the process worked this way: the prospective jurors would be seated in the jury box in a series of groups, beginning with a group of twelve to fourteen prospective jurors who were seated in the order in which their names were randomly drawn by the clerk of the court. The judge would individually question the venirepersons in the first group; he would then consider requests for excuse from service by jurors as well as challenges for cause and peremptory strikes exercised by the lawyers for the prosecution and defense directed at the individuals in that group. If four of the venirepersons from that group were not excused or struck (for cause or peremptorily), they then would be sworn as jurors. It might be useful to think of that group of four as a “mini-panel,” with the objective being to select three such groups to reach the goal of having twelve jurors. Alternatively, the first round of questioning and striking could result in fewer or more than four prospective jurors “surviving” the striking. If the number was less than four, those names would be set aside temporarily while another round of questioning of a fresh batch of venirepersons was conducted by the judge. Next, counsel and the judge would return to the judge's office to challenge and strike from the fresh batch. Any of the prospective jurors who had been carried over from the preceding batch, but who had not yet been sworn as a juror, could also be eliminated by a party exercising a peremptory challenge against that venireperson. (This is sometimes referred to as “backstriking.”) When this second round of challenging and striking of a batch was completed, the names of the prospective jurors who “survived” that second striking round would still be under consideration. However, when those names totaled four, a “mini-panel” would then be sworn. The opportunity to “backstrike” a prospective juror ended as soon as that person was sworn and became one of the four members of a “mini-panel.” What would happen if the number of prospective jurors “surviving” the challenges and strikes of the first round exceeded four, or if the combination of those carried over from the first round, when added to those “surviving” the second round exceeded four? In that event, the first four (in the order of the random draw) of those “surviving” jurors would be sworn as a “minipanel,” the additional names (assuming the number was less than four) would be carried over, and a new round of questioning of a fresh batch of prospective jurors would be undertaken. This process would continue until three of the “mini-panels” were constituted. Six rounds of questioning took place in this case over the two days of jury selection.

The judge excused two jurors for cause during questioning. Otherwise, after the judge completed his questioning of a batch of jurors, counsel and the judge retired to the judge's office for the raising of other challenges for cause and the exercise of peremptory strikes. The judge excused two others for cause or hardship following a discussion with the attorneys. The jury cards were put in the order that the venirepersons were seated in the jury box and the parties, by exercising peremptory strikes, selected the four jurors that would comprise the first “mini-panel.” This process was repeated to select the second and third “mini-panels.” Throughout the course of six striking sessions, both sides used all 20 of their peremptory challenges. The State exercised 17 of its peremptory strikes on African Americans. Two African Americans, Robbie Abbott and Percy Chambers, served on the jury. Both were chosen for the first “mini-panel” of four when the prosecution still had most of its peremptory strikes. One African American served as an alternate juror.

Following trial, Harris was sentenced to death on the murder conviction and terms of imprisonment on the other crimes. On direct appeal to the Illinois Supreme Court, Harris challenged his convictions on several grounds. Among them, he argued that the State's use of peremptory challenges to exclude African Americans from the jury denied him a fair trial. While his appeal was pending, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and held that Batson applied retroactively to all cases on direct review. Thereafter, the Illinois Supreme Court issued a supervisory order, retaining jurisdiction and remanding for a Batson hearing.

In July 1987, the judge who had presided over Harris's jury trial held a Batson hearing at which an Assistant State's Attorney (the “ASA”) who had participated in jury selection testified about the State's reasons for striking certain jurors. The trial court found that because the State exercised 17 of its 20 peremptory challenges on African Americans, Harris established a prima facie case of discrimination. The trial court accepted the State's proffered race-neutral reasons for the strikes, stating: “[the ASA] was extremely candid through-out the proceedings, and I believed his explanations throughout.” Thus, the trial court found that the State used its peremptory challenges on African Americans for nonracial reasons and it rejected Harris's Batson claim.

The case returned to the Illinois Supreme Court where Harris renewed his previous arguments and further argued that the trial court erred in rejecting his Batson claim. The court vacated the death sentence and conditionally vacated the convictions and other sentences subject to reinstatement. People v. Harris, 129 Ill.2d 123, 135 Ill.Dec. 861, 544 N.E.2d 357 (1989) ( “Harris I ”). The court concluded that in deciding whether Harris made a prima facie case of discrimination, the trial court erred in considering two venirepersons, Christine Riley and Edward Shealy, whose race was disputed. Id., 135 Ill.Dec. 861, 544 N.E.2d at 378–79. The court, however, agreed that Harris had established a prima facie case of discrimination and that the State rebutted the prima facie case for 12 of the 15 African American venirepersons. Id., 135 Ill.Dec. 861, 544 N.E.2d at 379–87. The court reversed the trial court's finding that the State rebutted the prima facie case as to 3 venirepersons, Milton Pickett, Essie Taylor, and Betty Simmons, and remanded the case to the trial court for new findings and conclusions regarding the State's explanations for striking them. Id., 135 Ill.Dec. 861, 544 N.E.2d at 383–86.

On remand the trial court found no Batson violation. It conducted a second sentencing, once again imposing the death penalty. Harris appealed to the Illinois Supreme Court, challenging the Batson ruling and his sentence. That court affirmed, concluding that the trial court's determination that the State provided race-neutral reasons for exercising peremptory challenges against Pickett, Taylor, and Simmons was not clearly erroneous. People v. Harris, 164 Ill.2d 322, 207 Ill.Dec. 400, 647 N.E.2d 893, 899–903 (1994) ( “Harris II ”). One justice dissented, concluding that the State excluded these 3 venirepersons because of their race. Id., 207 Ill.Dec. 400, 647 N.E.2d at 908–10 (Harrison, J.,...