Harrison v. McBride, No. 04-1398.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtRipple
Citation428 F.3d 652
PartiesJames P. HARRISON, Petitioner-Appellee, v. Daniel R. McBRIDE, Superintendent, Respondent-Appellant.
Decision Date27 October 2005
Docket NumberNo. 04-1398.

Page 652

428 F.3d 652
James P. HARRISON, Petitioner-Appellee,
v.
Daniel R. McBRIDE, Superintendent, Respondent-Appellant.
No. 04-1398.
United States Court of Appeals, Seventh Circuit.
Argued May 5, 2005.
Decided October 27, 2005.

Page 653

COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Joseph M. Cleary, Hammerle & Allen, and Rhonda R. Long-Sharp, Foster & Long-Sharp (argued), Indianapolis, IN, for Petitioner-Appellee.

James B. Martin (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellant.

Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.


James Harrison was convicted of the murders of Stacy Forsee and her two children. He was sentenced to death. After exhausting his state remedies in the courts of Indiana, he petitioned for a writ of habeas corpus in the district court. See 28 U.S.C. § 2254(a). The court granted the writ. The State of Indiana appeals that decision. See 28 U.S.C. § 1291. We now affirm the judgment of the district court for the reasons set forth in the following opinion.

I
BACKGROUND

A. Facts

A complete recitation of the facts of this case and of the rulings that led to Mr. Harrison's habeas petition are set forth in the district court's very thorough opinion. See Harrison v. Anderson, 300 F.Supp.2d 690 (S.D.Ind.2004). We recount here only those matters pertinent to the issue raised on appeal.

On January 17, 1989, the bodies of 20-year old Stacy Forsee, and her children Tia (3 1/2 years) and Jordan (21 months) were found among the ruins of the family's charred home. Forsee had been stabbed; the children had died as a result of the fire. After an investigation that lasted more than two years, Mr. Harrison was charged with arson, with the knowing murders of Stacy and Tia, and with the felony murder of Jordan.

Charges against Mr. Harrison were filed in Posey Circuit Court. Counsel was appointed for Mr. Harrison, and trial was set for January 6, 1992, before Judge James Redwine.

1. Change-of-Judge Motion

During the course of preparations for Mr. Harrison's trial, defense counsel learned through depositions that, not long before Forsee was killed, she had told officers of the Indiana State Police ("ISP") that she feared for her life. More specifically, she told Detectives Gary Gilbert and Larry Rhoades that she was being followed by a man in a suspicious van, that she had information about drug activity in Posey County involving her ex-boyfriend, Charles Hanmore, and another individual, Roger Greathouse, and that Judge Redwine had been present at Greathouse's home when drugs were being unloaded on Greathouse's property. Based upon this information, one defense theory was that members of the local drug community, rather than Mr. Harrison, had targeted Forsee because of her knowledge of drug activity.

In July of 1991, Judge Redwine was informed by the parties that his name had been mentioned "in conjunction with drug information" that Forsee had provided to the ISP. Judge Redwine indicated that he

Page 656

would not withdraw from the case.1 Subsequently, on September 16, 1991, the defense moved for a change of venue from the judge. The motion alleged, among other matters, that Judge Redwine could not rule objectively on the admissibility of evidence pertaining to Forsee's fear of Greathouse because of the possibility that the Judge's name might be mentioned during the presentation of the evidence.

On the same day that the motion for a change of judge was filed, Judge Redwine telephoned Greathouse and shared with him the allegations in the motion. The Judge requested that Greathouse attend the scheduled hearing on that motion. See State Ct. Vol. 23 at 721.

The following evidence was presented during the hearing. Detective Rhoades testified that, in 1988, Forsee had reported to the police that Judge Redwine was a person who was aware of drug activity. A tape recording of this interview had been made, but subsequently had been misplaced. Detective Rhoades also testified that he could not investigate allegations involving public officials without first securing approval from the Superintendent of the ISP. Additionally, Detective Rhoades stated that someone recently had made a request to conduct an investigation. Id. at 561-63. Prior to dismissing Detective Rhoades as a witness, Judge Redwine engaged in the following colloquy:

The Court: To your knowledge, has [Forsee] ever told anyone that I was at a party at Roger Greathouse's house.

Officer Rhoades: Not to my knowledge.

The Court: To your knowledge, has she ever told anyone that I had any knowledge of drug trafficking in this county.

Officer Rhoades: Just again, as I testified earlier, the information that she said Chuck Hanmore provided her with that you were aware of semi loads of marijuana.

The Court: And do you have any information that would corroborate any of those statements in anyway?

Officer Rhoades: No, I do not.

...

The Court: And at that time did you indicate to them [defense counsel] that Stacy Foresee [sic] had told you that I was at some party where drugs were?

Officer Rhoades: No, I did not.

The Court: You have never told anyone that she told you that?

Officer Rhoades: No.

The Court: And she did not tell you that?

Officer Rhoades: No, she did not.

The Court: Do you have any reason at all to believe I was at a party where drugs were?

Officer Rhoades: No, I don't.

Id. at 568-70.

Detective Gilbert, also of the ISP, was present during the interview with Stacy Forsee and testified at the change-of-judge hearing. During Detective Gilbert's testimony, Judge Redwine again interjected clarifications and questions into the examination:

Defense Counsel: And in that interview did she tell you she had been to the FBI?

Officer Gilbert: It is my understanding that she did, or the FBI was mentioned some time during that interview.

Page 657

Defense Counsel: And did she mention to you that after she had gone to the FBI this van had started following her?

The Court: She didn't say she had gone to the FBI. The officer said that she had just said that, or it was mentioned in the interview. Please make your questions specific. This is a very important matter, Mr. Warrum. I don't want you confusing the facts.

Id. at 575. Two pages later in the transcript, Judge Redwine stated: "She has not said, the witness has not said that she went to the FBI. The witness said he doesn't know for sure if she had been or said she was going." Id. at 577-78.

Judge Redwine took an active role in other aspects of the hearing as well. Judge Redwine admitted from the bench that the allegations contained in the motion "reflect[ ] upon the credibility of this Court," and he reproved defense counsel for "act[ing] so irresponsibly" by not investigating the allegations more thoroughly. Id. at 610-12. He took judicial notice of records from a criminal case involving Forsee's brother, over which he had presided, to establish that a factual basis supported the guilty plea. Id. at 627-28. He ordered records in Forsee's son's paternity action to be made public and played the tape of the paternity hearing to show that he had not been biased against Forsee. Id. at 628-29. Additionally, Judge Redwine called Forsee's attorney (Ms. McFaddin-Higgins) in the paternity action as a witness to establish that the proceeding had been fair. Id. at 636-37, 657, 659. Judge Redwine had Forsee's mother, brother and former boyfriend (Charles Hanmore) sit in the courtroom and listen to McFaddin-Higgins' testimony, despite a witness separation order. Id. at 629-30. He called Greathouse as a witness to testify that he had never known the Judge to be involved in drug activity. Id. at 715-24. Finally, Judge Redwine asked defense counsel if they were alleging that he had any motive to or did kill Forsee. Id. at 604-06. He stated to defense counsel: "These are serious allegations reflecting on the credibility of the court.... You have brought a lot of people's names up and dragged them through the mud. You have probably ruined a lot of people's lives and reputations...." Id. at 610. Judge Redwine ultimately denied the change-of-judge motion.

After Judge Redwine denied that request, Mr. Harrison filed a mandamus action in the Supreme Court of Indiana to compel a change of judge; Mr. Harrison filed a brief in support of that motion, the transcript of the hearing on the change-of-judge motion, and other record materials in support of his action. See R.34, Ex.A; State Ct. Vols. 34 & 35. The Supreme Court of Indiana denied relief without opinion.

2. Other Rulings by the State Court

The expanded record also reflects a series of pre-trial rulings that followed the denial of the change-of-judge motion. According to Mr. Harrison, these rulings evidence Judge Redwine's efforts to hinder the defense. They included: (1) refusing to grant the defense a continuance to respond to the State's late disclosure of inculpatory DNA test results; (2) granting the State's motion in limine — even though defense counsel indicated that he was not ready to respond — to prohibit defense counsel from making any allegation that a third party had killed Forsee; (3) excluding defense witnesses disclosed after the deadline, including Hanmore and Greathouse; and (4) requiring defense counsel to share with the prosecutor materials that defense counsel had obtained from a death penalty defense conference, while not imposing

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a similar requirement on the prosecutor. See Harrison, 300 F.Supp.2d at 710-12.

Mr. Harrison's murder trial began on November 6, 1991. There was evidence admitted that, before the fire trucks arrived, Harrison had been observed near the scene of the fire on the night of the murders. There also was evidence that he had purchased kerosene days before the murders and that a flammable liquid had started the fire. Finally, evidence was presented that Mr. Harrison had informed...

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28 practice notes
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 28, 2012
    ...United States v. Diekemper, 604 F.3d 345, 352 (7th Cir.2010)Collins v. Illinois, 554 F.3d 693, 697 (7th Cir.2009); Harrison v. McBride, 428 F.3d 652, 668 (7th Cir.2005). Actual bias, when shown, is the sort of structural defect that defies harmless-error inquiry and compels reversal regardl......
  • Sivak v. Hardison, No. 08–99006.
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 7, 2011
    ...the parties' evidence and arguments during both the guilt and sentencing phases of trial. Nor is this case like Harrison v. McBride, 428 F.3d 652 (7th Cir.2005), another case cited by Sivak. In Harrison, a witness told police detectives that the trial judge was connected with the local drug......
  • Ben-Yisrayl v. Buss, No. 07-2151.
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    • August 28, 2008
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  • Johnson v. Mechling, No. 4:04-CV-1564.
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    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 31, 2008
    ...petitioner fairly presented sufficiency of the evidence claim because federal and Florida standards are identical); Harrison v. McBride, 428 F.3d 652, 660-63 (7th Cir. 2005) (holding Supreme Court's decision in Baldwin does not require more of a petitioner than the four-part test articulate......
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  • United States ex rel. Navarro v. Atchison, No. 13 C 427
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 24, 2014
    ...this doctrine to apply, the state court must “clearly and expressly” base its judgment on the state procedural bar. Harrison v. McBride, 428 F.3d 652, 664 (7th Cir.2005) ; see also Richardson v. Lemke, 745 F.3d 258, 269 (7th Cir.2014) (for a claim to be procedurally defaulted on the basis o......
  • Virsnieks v. Smith, No. 06-3322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 2, 2008
    ...as neither the reasoning nor the result of the state-court decision contradicts" the Court's precedents); see also Harrison v. McBride, 428 F.3d 652, 665-67 (7th 8. We employ the same standard in determining whether a no contest plea was entered knowingly and voluntarily. See, e.g., McGrath......
  • United States v. Vallone, Nos. 08–3690
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 28, 2012
    ...United States v. Diekemper, 604 F.3d 345, 352 (7th Cir.2010)Collins v. Illinois, 554 F.3d 693, 697 (7th Cir.2009); Harrison v. McBride, 428 F.3d 652, 668 (7th Cir.2005). Actual bias, when shown, is the sort of structural defect that defies harmless-error inquiry and compels reversal regardl......
  • Sivak v. Hardison, No. 08–99006.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 7, 2011
    ...the parties' evidence and arguments during both the guilt and sentencing phases of trial. Nor is this case like Harrison v. McBride, 428 F.3d 652 (7th Cir.2005), another case cited by Sivak. In Harrison, a witness told police detectives that the trial judge was connected with the local drug......
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