Wisehart v. Davis

• Decision Date: 24 June 2005
• Docket Number: No. 04-1632.,04-1632.
• Citation: 408 F.3d 321
• Parties: Mark A. WISEHART, Petitioner-Appellant, v. Cecil DAVIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

408 F.3d 321

Mark A. WISEHART, Petitioner-Appellant, v. Cecil DAVIS, Respondent-Appellee.

No. 04-1632.

United States Court of Appeals, Seventh Circuit.

Argued March 23, 2005.

Decided May 10, 2005.

Rehearing and Rehearing En Banc Denied June 24, 2005.

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Alan M. Freedman, Midwest Center for Justice, Evanston, IL, Rhonda R. Long-Sharp (argued), Foster & Long-Sharp, Indianapolis, IN, for Petitioner-Appellant.

Stephen R. Creason, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before FLAUM, Chief Judge, and POSNER and WOOD, Circuit Judges.

POSNER, Circuit Judge.

In 1983 an Indiana jury found Mark Wisehart guilty of murder and robbery of an elderly woman, the burglary of her home, and the theft of her property. The jury recommended the death penalty, and the judge agreed and sentenced Wisehart accordingly. After exhausting state judicial remedies in Wisehart v. State, 484 N.E.2d 949 (Ind.1985), 693 N.E.2d 23 (Ind. 1998), Wisehart unsuccessfully sought federal habeas corpus, and has now appealed to us.

The police discovered the body as the result of an anonymous phone call—by Wisehart himself, who disguised his voice. Wisehart lived in a homeless shelter called the "Christian Center" to which his victim had been a regular visitor. Another resident, a companion in crime to Wisehart named Johnson, testified that Wisehart had sent him a series of letters in which he talked about going to old people's houses and robbing them and killing anyone who got in the way; the letters were placed in evidence. Johnson also testified that after the murder Wisehart, realizing that Johnson would be a witness, told him: "Try to make it look like I'm crazy."

Wisehart gave the police a full and detailed confession a week after the murder. His defense at trial was that he was insane and his confession (which he admitted making) false.

He makes two arguments. (A third, that some of the jury instructions suggested he might be convicted on the basis of a mere preponderance of the evidence, was procedurally defaulted and is anyway completely without merit.) The first argument is that the state violated the Brady doctrine (see, e.g., Strickler v. Greene, 527 U.S. 263, 280-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Fallon, 348 F.3d 248, 251-52 (7th Cir. 2003)) by failing to disclose benefits that Johnson had received as a result of his agreeing to testify. The prosecution's giving a witness benefits—leniency, cash, or anything else—can be used by a cross-examining defense counsel to undermine the witness in two, possibly three, distinct ways. The first and most common is by showing that the benefits were given in return for the witness's providing testimony that would help the prosecution. He might have told the prosecutor what he would testify to if called and the prosecutor might have explicitly agreed to give him specified benefits if he testified consistently with his proffer. E.g., Giglio v. United States, 405 U.S. 150, 152-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Abbott v. United States, 195 F.3d 946, 948-50 (7th Cir.1999); Shabazz v. Artuz, 336 F.3d 154, 161-62 (2d Cir.2003). Or there might have been a tacit understanding that if his testimony was helpful to the prosecution, the state would give him a break on some pending criminal charge. Another example of an implicit agreement would be if the prosecutor promised a witness $100,000 contingent on the defendant's being convicted. Cf. United States v. Villafranca, 260 F.3d 374, 380 (5th Cir.2001). Express or tacit, either way there would be an agreement, it would be usable for impeachment, and it would have to be disclosed to the defense. But the Indiana Supreme Court found that in this case there had been no agreement, express or implied, and as the finding has not been rebutted by "clear and convincing evidence," it binds us. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 324, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Barrow v. Uchtman, 398 F.3d 597, 602-03 (7th Cir.2005). The finding further implies that Johnson was not testifying falsely when he denied having any "kind of deal" with the prosecution regarding his other crimes; a deal is an agreement. And so there was no violation of the rule of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

The second way of invoking Brady is by showing that although there was no quid pro quo, the state, as in our Boyd and Williams cases, United States v. Boyd, 55 F.3d 239, 243-45 (7th Cir.1995); United States v. Williams, 81 F.3d 1434, 1438 (7th Cir.1996); see also United States v. Sipe, 388 F.3d 471, 488-90 (5th Cir.2004); United States v. Soto-Beniquez, 356 F.3d 1, 41 (1st Cir.2004), had lavished benefits (sex, free long-distance calls, cash, or what have you) on its witnesses in the hope of making them feel part of the state's team and as a result inclined, out of gratitude, friendship, or loyalty, to testify in support of the prosecution. In Sipe, for example, the aliens who testified for the government "were given ... significant benefits, including Social Security cards, witness fees, permits allowing travel to and from Mexico, travel expenses, living expenses, some phone expenses, and other benefits. They were essentially given all, and more, of the benefits they were arrested for trying to obtain illegally—benefits so valuable that they took great risks to obtain them by crossing the border illegally .... [Prosecutors stated] that the aliens needed to be `kept in orbit'; that the agents needed to maintain `close control' over the witnesses; that they must be kept `in pocket'; and that the aliens needed to be `re-commit[ted] to the cause.' This evidence, which was withheld from Sipe, reveals that the aliens were dependent upon the government for their most basic needs, such as visiting and communicating with their families." 388 F.3d at 488-90. There is nothing comparable here.

There may be a third category; it could be thought intermediate between the first two. This would be the definite benefit that is neither a quid pro quo nor lavish, yet permits an inference that the witness's testimony would be affected. Suppose the prosecutor had given Johnson $500, with no words exchanged, and later called him as a witness. Johnson might think either that his acceptance of the money had created an obligation to cooperate with the prosecution or that he should cooperate out of gratitude. There would be an argument for requiring disclosure of such a benefit, especially as the requirement would not create the problem of fuzzy boundaries that requiring disclosure of a mere forbearance to prosecute a witness for unrelated crimes, discussed next, would create. We need not decide how strong an argument; Johnson received no such definite benefit.

What is decisive for this case is this court's refusal to recognize a fourth Brady category, in which the state merely doesn't come down as hard on a witness as it could. "Todd cannot prove an agreement existed. He argues that at the very least Nielson had an `expectation' of benefit. But what one party might expect from another does not amount to an agreement between them. And Todd does not argue that the state knew of Nielson's expectation or that he could not have uncovered that expectation with reasonable diligence. This brings us back to the agreement, which Todd cannot show existed. Without an agreement, no evidence was suppressed, and the state's conduct, not disclosing something it did not have, cannot be considered a Brady violation." Todd v. Schomig, 283 F.3d 842, 849 (7th Cir.2002). Or as the Second Circuit put it in Shabazz v. Artuz, supra, 336 F.3d at 165 (emphasis in original), "The government is free to reward witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing to the defendant its intention to do so, provided that it does not promise anything to the witnesses prior to their testimony .... [T]he fact that a prosecutor afforded favorable treatment to a government witness, standing alone, does not establish the existence of an underlying promise of leniency in exchange for testimony."

The objections to the extension for which Wisehart contends are twofold. First, the category has no ascertainable boundaries. Rarely does the state end up charging a defendant with every possible crime that he may have committed. Because the state doesn't have the resources to do that, most criminal cases are disposed of pursuant to plea agreements that involve some concessions on its part. The implication of Wisehart's argument is that whenever the state uses a criminal as a witness, which it does very commonly in criminal cases, the entire history of the state's dealing with the individual must be excavated and displayed and inspected for intimations of leniency, and perhaps all his hypothetical future dealings as well, for he might think that cooperation now would yield benefits should he ever again become involved with the law. Any time the government had omitted to charge the witness with a crime, the omission would have to be disclosed to defense counsel and explained to the jury, unless the statute of limitations had run, since until then the government could punish the witness for unsatisfactory testimony by prosecuting him for the crime. But second, the impeachment value would be slight, once charging practices were explained to the jury.

Evidence presented in Wisehart's postconviction proceedings, and thus not available to the defense at trial, indicated that the state had not prosecuted Johnson for two burglaries that they suspected him of having committed, because they didn't want by doing so to dissuade him from testifying against Wisehart; they didn't want to antagonize him. But what would knowledge of this motive of the state's have added to the jury's...