*1 professionals. Youngberg deprived reliable the un- are polygraphs court; the results to be used enough Ohlinger reasoned assertion of whatever psycholo- whether wardens it is about judicial slight value unreasoned assertions using them damages for gists pay must carry. otherwise For reasons we have devices) (and part therapeutic other it not given, possible say is on this no; it is programs. The answer program record that Illinois’ exceeds the (indeed, it is not the clearly established legitimate professional judg- domain of law) self-accusatory programs appellants prevail ment. The three machines are forbidden when polygraph merits, any qualified without need for im- As far as the Con- treating sex offenders. munity. concerned, enough it stitution is Reversed. exercised. That the Associa- judgment be Treatment of Sexual Abusers tion for the
(whose papers may be found position
<http://www.atsa.com/pubPPapers.html>) programs different from
recommends nor there.
one Illinois uses is neither here command state
The Constitution does not majority view of a
officials to follow the Plaintiffs given professional association. SEARCY, Petitioner-Appellee, Derrick any for us to supplied have not reason v. by made Illinois conclude that the choices Danny JAIMET, Warden, D. Hill profes- are far outside the bounds of so they equated Center, must be sional norms Re Correctional Indeed, choice at all. professional with no spondent-Appellant. any expert evi-
plaintiffs have not adduced No. 02-4010. (At dence, they last minute period. by whose tendered letter consultant Appeals, United States Court of to do with principal writings have had Seventh Circuit. un-
victims’ recovered memories. This 3, Argued April 2003. document, up after sworn which showed deadline, evidentiary discovery has no Decided June they any Nor have cited significance.)
(cid:127) scholarly literature. The defendants’ con- using programs that Illinois is
tention pro-
represent application reputable judgment any stands without ser-
fessional
ious contest. plaintiffs’
As for contention that treat-
ment must be tailored to each individual groups:
rather than administered to one (without appeals
court of has said this Watson, Ohlinger see
explanation), (9th Cir.1980),
F.2d 778-79 but what (a) years two later is that
Youngberg held persons
committed are entitled to some (b)
treatment, and what treatment
entails must be decided mental-health
KANNE, Judge. Circuit Derrick filed a petition for a writ of habeas corpus the United States Dis- trict Court for the Northern District of *3 Illinois. He claimed that his conviction for first-degree murder was tainted violation of his Sixth Amendment opportunity broad to cross-examine wit- regarding nesses their motivation to testify against him. The district agreed the Illinois state court had indeed Searcy’s violated Confrontation Clause rights and granted his petition. Because we do not believe that the Illinois state court’s decision regarding the scope of Se- arcy’s rights cross-examination was either contrary to or an application unreasonable law, established federal we re- verse.
HISTORY Searcy Petitioner was tried and convict- by jury ed County Cook Circuit Court charge on the of first-degree murder in the death of Edward Bowman. The State’s case Searcy heavily on rested testimony of two “occurrence” witnesses present who were during the events lead- ing up to the murder of Bowman. witness, Johnson, The first Clarence tes- 6, 1994, tified that on June Searcy he saw arguing, Searcy and Bowman hit during Bowman argument, their and that Searcy repeatedly told Bowman that he going was to kill him. Johnson went on to testify that he witnessed a second alterca- tion Searcy between and Bowman later day, that same time on front porch Winger Steven J. (argued), Jenner & Searcy’s home. During this second ar- Block, IL, Chicago, Petitioner-Appel- gument, Searcy pulled gun from his shoe lee. and chased Bowman the side of around Lisa A. (argued), Hoffman Office of the Searcy’s alley. house into the Johnson General, IL, Attorney Chicago, for Re- Searcy said saw fire two shots at Bow- spondent-Appellant. him, man as he chased neither of which hit CUDAHY, MANION, Before Searcy Bowman. Once Bowman and KANNE, Judges. Circuit alley, longer reached the Johnson could no day more them, they allegedly he said he heard five witnessed on the Bow- but
see hearing man killed. later. After was shots a few seconds shots, alley where went to the Johnson centrality Given the of the ground. lying he found and Brooks to the State’s key part was to primary Searcy’s second witness defense call The State’s Brooks, their credibility by highlight- who with Johnson into Michael discrepancies during ing the events June 6th. their accounts. For example, pointed and Bow- out that the seeing also testified medi- early day and to wit- cal examiner testified that Bowman had arguing man six nessing According the second been shot times in the face. argument *4 Johnson, he saw both the and the home. Like Brooks said to medical examiner de- alley adjoining expert neurologist, Bowman fense’s the fourth Searcy chase to an shot Searcy likely fire two to Bowman’s head caused Searcy’s home immediate saw (he death, if conflicting unaware those Brooks’s account of shots at Bowman was with Bowman). actually talking hit Brooks testi- Bowman him after he had shots to been that to seconds later he shot. The offered the fied some five ten defense also testi- shots, Mills, coming mony five more all at the of Toñita said that on heard who killed, being He the first was day same time. testified to Bowman she saw Brooks person arguing alley to arrive at the of the shoot- with a in the scene man behind in the ing, lying away he found Bowman house. After she turned where to alley. spoke argument, Brooks said that Bowman from the she heard several gun- him, “Uhh, time, scene, him I’m not As she telling away at that shots. ran make it.” saw Johnson going driving up. to she She testified Searcy any point that she did not at see arrived find Bowman dead police The to that afternoon. time, At neither Johnson the scene. they be- police noting nor Brooks told that addition in inconsistencies Searcy accounts, shot Bowman. Searcy lieved Johnson’s Brooks’s Brooks did tell detective about the earli- wanted to into their inquire possible also Searcy er and Bow- testifying. confrontation between biases and motivations in The man, Searcy shooting theory not that he but saw defense’s was that Brooks was the Bowman, in the later incident. Johnson of actual shooter with Johnson as accomplice, that he then home and testified drove his because Brooks had son, Boyd, to acting called Bowman’s Marlonn learned Bowman was as po- informant, tell him the murder of his father. providing lice information about scene, where They drug-dealing Searcy later returned to the Brooks’s activities. he and sought Brooks said Johnson told Marlonn them about the fact Searcy had killed father. that after Bowman had been arrested for possession drugs, began negotiations of 1, 1995, May year after On almost one police with the an become informant. death, police arrested Sear- Bowman’s He also wanted to cross-examine both cy on an unrelated matter. Based on the alleged Brooks and Johnson about their police interviews Johnson and Brooks drugs in a membership gang that sold death, day was Bowman’s competition with Bowman. charged ultimately with Bowman’s murder. against Searcy pri- case Searcy argued The State’s rested that his evidence would marily testimony of Johnson show that when Bowman was arrested for Brooks, dealing presence testified as to what drug who at trial (who Boyd opening was a Before the someone named Clinton statements in Sear- trial, State moved in limine Johnson), cy’s police he told neighbor prevent the defense from offering any Michael Brooks was a dealer and the evi- dence about the issue working of Bowman police looking. were one for whom the as a informant. police The State ap- to call as a witness prepared parently concerned that the defense’s theo- Washington, Donald Chicago Police Officer ry was to create reasonable doubt as to testify would to the events surround- who Searcy’s guilt by giving another arrest, ing Bowman’s as well as his subse- villain, regardless any quent negotiations with Bowman over the backing up accusations Brooks. to act infor- terms of deal eventually ruled that Sear- mant. He also offered the cy could not cross-examine Johnson or Mills, Toñita who the defense said would regarding the informant issue un- testify buying drugs from Brooks and less he provide could a foundation for that Johnson on numerous occasions. Ulti- questioning by, line of for example, show- — mately, sought argue the defense ing they knew that Bowman was in- Brooks became aware of Bowman’s infor- forming on them.1 (through Boyd mant activities Clinton talk- *5 Johnson, ing neighbor with his who would The court permit did the defense to Brooks), providing then talk to a motiva- pres- examine both witnesses outside the him jury tion for to murder Bowman. ence of the on the informant issue as 1. The relevant sion in which the State’s in limine motion DEFENSE: I don’t think I can make that DEFENSE: DEFENSE: COURT: Could COURT: COURT: * him, Bowman, develop his motive to want to kill [Brooks] know even if he or—or was he informed, I think the ceased was of this situation name in as the or a evidence at [Brooks] that Bowman threw his * bility. us. proof connection— fellow, Honor can hold that [Brooks’s] motive to kill this or, I think portion I don't [Brooks] to drug he has to know the court but I do not think that statement, you It * has to at this ... dealer? incorrectly, that the de- and we’ve goes we informing linchpin of the sidebar discus- made informing trial, prove, proceeded think make that decision. It * know about it. To are entitled to let owner, possessor, give to the point, your that Clinton told is, its not its admissi- we by competent ruling did [Brooks] of * us an accu- on him. got on him. as follows: weight can trust relates to a clear against victim, * on issue, Hon- your Trial Tr. COURT: Then I think DEFENSE: Your COURT: That's where I have not established that think it’s type questions, if he was aware of to in the case I that area. them in their was them under oath in cross-examination- Brooks and Johnson going In terms of the informant issue Brooks or Johnson knew that if it is or and if he ately will allow [******] true, X-86-88, some other you is that we cal inferences. preclude you perfectly that Bowman says yes, prove sion. entitled to [an] inference that rate answer in this Honor. can’t do that. What innuendos, I prove, alleged drug will, jury you just X-96-97. Honor, [Brooks's] competent way. clear, I get can make that deci- for us to if cited, you was, testify, go you disagree. and not was into insinuations it’s have to do it in into that. and it’s alluded then I immedi- activities, you that since want, very informing guilt. entering let go can show fair, logi- though, happens you out and difficult I think before We’re your I am that, into you ask on I may be excluded cross-examination for such under the foundation laying a means remote, uncertain or if it is this voir dire John- as irrelevant testimony. During Brooks, Searcy, admitted to conjectural.” People v. Johnson son and Bowman, that he had slip op. but said knowing N.E.2d WL 2000). with Clinton had a conversation Aug.2, never (Ill.Ct.App. In- Bowman’s arrest. regarding Boyd the defense’s given to note that went on stead, communication between speculative wheth- proof, was “[i]t offer to an occa- Boyd was limited and Clinton Boyd overheard -Bowman’s er Clinton also goodbye.” Johnson “hello and sional con- Brooks ... it was statements him that ever told that no one testified knew jectural Brooks or Johnson considering informing Bowman or police to the what Mr. Bowman stated that he also Brooks testified Brooks. informant.” Id. becoming an that he was Bowman, knowing that denied knew but speculation chain of at 16-17. Given the or that Bowman had drugs sold Bowman the conclusion required to reach in 1994. drug possession arrested been motivated to kill Bowman be- Brooks was that he had no further testified activities, the court of his informant cause considering that Bowman was knowledge evidence [of such “[w]ithout concluded informant him. becoming of Bow- knowledge Brooks’s Johnson’s quite agitated when asked Brooks became activities], it not er- informant man’s if counsel he was aware by defense present to refuse to allow defendant ror Chicago police that had told the testimony or to cross- police officer’s fact, agitated, in he was a dealer —so on these Brooks and Johnson examine judge to warn Brooks to that the trial at 17. matters.” Id. and “restrain [himself].” “calm down” *6 ap- for leave to Searcy petition filed a did not that the two witnesses Given Court, Supreme which peal to the Illinois knowing nego- that admit to 29, His on November was denied police to become an informant tiating .with a writ of certiorari step next was to seek Brooks, Searcy un- and that against Court; Supreme from the United States requirement trial court’s able to meet the 26, 2001, petition was also on March knowledge by such other prove that he denied. evidence, grant- trial court competent the 25, 2002, Searcy filed this and On March government’s the in limine motion ed in Dis- inquiring petition into the habeas the United States precluded during issue examination of Illinois. his informant trict Court for Northern of the presence and Brooks in the for re- petition, presented three claims jury- lief, the centered around Confrontation (1) that of the Sixth Amendment: Clause ultimately Searcy guilty
The
found
him to show that the witnesses
requiring
murder, and the court sen-
first-degree
him
admit to acts discredit-
against
would
years imprisonment.
42
Se-
tenced him to
testimony
precondition
ing their
as
Illinois
arcy then took his case to the
cross-examining them
those acts was
the con-
Appeals,
which affirmed
Court
by the
contrary to the rule established
court
the trial
viction. That
found that
States,
in
Supreme Court
v. United
in
examina-
precluding
court had not erred
Alford
218,
687,
1087 principles granted down application Searcy’s petition. of the laid therefore able The Alaska, in Supreme appealed Davis v. State to this Court. by Court 308, 1105, 39 347 415 U.S. 94 S.Ct. L.Ed.2d ANALYSIS Arsdall, (1974), Delaware v. Van 475 U.S. (1986),
673,
1431,
106
1089
Williams,
omitted);
Illinois
see also
In this
state
529
courts
U.S. at
rule —the
appeals
(“[A]
the correct
state
applied
411,
But and motives.” enjoy an unlimited nesses about their biases not does defendant 19899, at Searcy, any subject on Dist. LEXIS cross-exam U.S. pursue has made But that a characteriza- ination, Court *29. is too broad as They did tion of the state courts did. clear: what any inquiry or not foreclose into bias course, follow, of It does witnesses; key prosecution of motivation of Sixth Clause Confrontation complete such a limitation would judge a trial prevents Amendment Davis, Arsdall, Van violate rule of on counsel’s any hmits defense imposing Rather, Olden. required the state courts prose- a bias of into the inquiry Searcy could contrary, question that before On the cution witness. negotiating to insofar as the and Brooks about Bowman judges retain wide latitude informant, police provide, by im- act he concerned to as a Clause Confrontation evidence, pose hmits on such cross- a sufficient factual ba- competent reasonable about, on concerns the trial questions examination based sis for those —what harassment, things, preju- among judge “linchpin other of this called issues, dice, case, the witness’ confusion of the in this habeas issue.” repetitive safety, interrogation or that is therefore, down to the trial comes (rather substantial) only marginally or relevant. court, requiring in a showing support Searcy’s for factual Arsdall, 679, 106 Van 475 U.S. at questions, beyond impos- went informant applied have this lan 1431. Lower courts (based ing limit on a “reasonable” founda- limitations on cross-exami guage justify concerns) Searcy’s ability tion to con- subjects for there is no nation into which him. front witnesses v. see Reddick foundation, , proper Haws Cir.1997) (7th 714, (finding 120 F.3d trial, Searcy offered items of At several limitation on cross-examination was provided that he said a factual the defendant “could appropriate when questions, for his informant the most basis lay rudimentary foundation for neither important was the which which he wished to [into circumstances Washington. pre- Officer The officer was underlying nor when the inquire], establish pared that at testify the time Bow- despite the place, conduct took considera arrest, man’s there was another individual leeway willing ble trial court was (Clinton Boyd) present who close Lin, this”); United States give him on enough protest heard Bowman have (D.C.Cir.1996) 101 F.3d 767-68 police “got wrong had guy” that the (“Highly prejudicial questioning the sort they go “Country” and that should after here, however, requires reason proposed (Brooks’s nickname). testify He would fact.”); Bui, 170 F.3d at grounding able arrest, negotiate began that after 243-46, unduly matters that are into work whereby deal Bowman would Lo, speculative, see States v. United exchange informant lenient (9th Cir.2000) (affirming F.3d 482-83 ar- treatment connection with into fraud limitation on cross-examination rest, but that Bowman was killed before highly specula allegations because “the the deal could finalized. Officer be Wash- allegations). of those tive nature” ington testify, unable to apparently however, Boyd told Clinton either the district court Johnson or Brooks of Bowman’s accusato- Illinois courts had unrea found that the arrest, ry time sonably applied the Van Arsdall-Davis statement at the of his Boyd nego- of the Olden Clinton was even aware principle by “precluding defense *10 status, (“Confron- informant several id. at over Bowman’s factors. See *23 tiations anyone learned of the or that else had tation Clause violations do not them- lend and either Johnson negotiations informed simple straightforward selves to analysis, or Brooks. but rather a balancing many involve factors.”). Presumably, the courts state Washington’s tes- In addition Officer weighed the factors same as the district Searcy testimony the timony, offered defense, theory court—-the the the im- Mills, at who trial.that she Toñita stated portance of testimony the of Johnson and drugs bought from both previously had Brooks prosecution, and the Brooks, that and and she had Johnson strength proffered of the factual predicate with arguing Brooks witnessed for the line of questioning to a came immediately prior Searcy murder. his —but different conclusion. testimony that her adds to contends predicate by demonstrating factual that As the Court has em and Johnson had reason to fear Brooks phasized, for a federal habeas court (by informing showing Bowman’s on them reject application the state courts’ of feder dealers) they actually that were and law, al the state courts’ conclusions must angry that Brooks was Bowman for be “more than incorrect or erroneous.” reason, causing argue. them to some Se- preferred While we would have during arcy noted that the voir dire of also accepted court had a less substantial presence jury, outside the of the showing factual allowing before cross-ex Johnson admitted that he knew both Clin- amination, Searcy or that al have been Bowman, Boyd and and that he ton lowed to cross-examine the witnesses spoken with Bowman between his arrest proof offered, based he had our suggests and murder. this evi- view of the “correct” conclusion is not dis- dence, together, provides taken a sufficient positive. Our review limited to reasonably from which the could basis question of state courts’ reso in fact infer Johnson had learned of lution of “objectively the issue unrea informant activities. Bowman’s — at-, Lockyer, sonable.” U.S. the Illinois trial court and Illi- Both at 1174. A federal court’s deference appellate nois court found to the state resolution of the court’s issues evidentiary proffer was insufficient important involved is even more when such problems avoid of innuendo insinua- requires weighing resolution of factors disagreed, finding tion. The district court against one “when another: the constitu- that the state courts should have allowed tional question degree, is a matter of rath- cross-examination on the issue of Brooks’s entitlements, er than of concrete a ‘reason- for murdering and Johnson’s motivation by able’ decision the state court must be Bowman. The district concluded Gilmore, honored.” Holman v. 126 F.3d “[gjiven theory bias and motive Cir.1997) (7th (quotation 881-82 omit- stake, centrality Brooks’s and ted). Indeed, transcript the trial discloses prosecution, to the Johnson’s an highly professional informed and dis- good predicate,” and defendant’s faith judge cussion among opposing on Searcy’s limitation cross-examination of lawyers on this issue. Johnson violated his Confron- say cannot we rights. Searcy, tation Clause Illinois courts’ determination that Dist. LEXIS at *26. As demon- had failed opinion, strated the district court’s to establish sufficient factual determination line required balancing questioning of basis his desired
1092 unreasonable, objectively On the was not decision “objectively was unreasonable.” entitled, AEDPA, decision the Illinois courts’ it under to deference contrary, the minimally consistent with “at least federal court. from a habeas the ... facts circumstances of case and fully CONCLUSION
even if it is not well reasoned least, reasoned;” was, at the that decision of Appeals’ The Illinois Court decision equally plausible “one several outcomes.” affirming Searcy’s conviction was neither aff, F.3d at 522. Sch it “an “contrary to” nor did involve unrea- proof support of his Searcy’s offer of of’ application sonable established far from a cross-examination effort was Therefore, law. the decision of the federal testimony of Officer “slam dunk.” Searcy’s for granting petition district court Mills, as Washington and Toñita well and corpus a of habeas is ReveRSed writ he by that both admission petition Denied. spoken Boyd, knew had with Clinton it possible that was for simply established CUDAHY, Judge, dissenting. Circuit Boyd have Bowman’s statement heard majority the district court and the As arrest, at the time of his regarding Brooks recognized, have both this case boils down Boyd to possible and that it was have balancing Searcy’s constitutional Johnson, then possi- this to who mentioned require- accusers a confront his bly proffered The evidence told Brooks. a less ment that make more or conclu- suggest by Searcy Boyd, did not how (as foundation) showing evidentiary sive an (if Johnson, had or Brooks become aware Brooks and Johnson were aware of that had) Bowman had moved they indeed Bowman’s informant activities. The dis- wrong beyond making “you got guy” trict court held that Illinois courts to begin at the time his arrest statement balance, an struck unreasonable while negotiations to as a informant. serve majority believes that those courts reached proof insufficient to Finding offer equally plausible “one of out- several support questioning Searcy the line of de- comes,” if not “preferred” even one. (even if, “plausible” in our sired was I Maj. op. agree with the district incorrect) conclusion opinion, state balancing lop- court that the state so courts. appellate sided as amount an unreasonable true that when the While it is precedent. application Court testimony of is central to the witness the state The difference between view case, a prosecution’s defendant should be appropriate an federal view is more than given opportunity” “maximum cross- discrepancy majority the minor Sullivan, witness, Burr v. examine would countenance an exercise of defer- (9th Cir.1980), that does F.2d ence. given will be mean a defendant majority opinion Since does an admi- every specula no how opportunity, matter facts, job of out I laying rable the relevant tive, confusing, or irrelevant line First, only key points. a few shall stress may a close questioning be. While merely and Johnson were not cen- say we cannot it was prosecution’s they to the were tral courts to for the Illinois have unreasonable case— only evidence prosecution’s the case. The required to demonstrate factual tying to Bowman’s murder was the questioning basis for the informant line of (even Johnson; testimony of there Brooks and disagree proof if we with the level (indeed, Illinois all required). physical courts Because that was no evidence at strongly suggested medical The decisions of the Illinois courts here *12 at Brooks’ cannot part least of be reconciled with the abundant false). precedent that protects Brooks Johnson came forward a defendant’s con- right probe with their accounts almost a stitutional to eyewitness bias and motive year place, prosecution full murder after the had taken witnesses in cross-examina- See, the although they jury. e.g., had been interviewed tion before the Davis v. Second, Alaska, day 308, police 316, 1105, the murder. 415 U.S. 94 S.Ct. 39 (1974) (“The at trial 347 defense was that Brooks L.Ed.2d partiality of a guilty parties. subject trial, and Johnson were the To is exploration witness to at support theory, Searcy always to needed and is relevant discrediting as the jury the demonstrate to motive affecting weight witness and the of his (internal for Brooks and Johnson to Bow- testimony.”) murder quotation marks man. to a mo- planned omitted); show such Redmond v. Kingston, 240 F.3d by cross-examining (7th Cir.2001) (“ tive John- 590, Brooks and generally 593 ‘[W]hile membership son on rumored in a their applicable evidentiary limit inquiry rules gang in competition that sold narcotics into specific instances of through conduct probable with Bowman and their aware- the extrinsic through use of evidence and cooper- ness of the that Bowman fact cross-examination respect general with to ating police with as an informant attacks, credibility ... ap- no such limit Brooks’ activities. Both lines of plies credibility upon to attacks based mo- ” were, in cross-examination as recounted Quinn tive or (quoting Haynes, bias.’ v. the majority opinion, denied. 837, (4th Cir.2000))). 234 F.3d 845 Trial permit courts must “to expose defendants
Third,
of the
Searcy offered outside
jury
jurors,
to
the
facts from which
jury’s presence substantial
con-
evidence
triers of fact
credibility,
sole
could
necting
knowledge
and Johnson
Brooks
to
appropriately
relating
draw inferences
Chicago
of Bowman’s informant activities.
Davis,
reliability of
the witness.”
415
in
Washington
officer Donald
swore
318,
at
94
U.S.
S.Ct. 1105. “Limitations on
an affidavit that he and another officer had
cross examination rise
the level of a
arrested Bowman three
months before
they pre-
Sixth Amendment violation when
time,
murder. At that
in the
presence
exposure
vent
a witness’s bias and
Boyd,
Clinton
a neighbor
who was
of John-
Smith,
motivation
lie.”
v.
son,
United States
protested
Washington
(7th Cir.2002)
726,
(citing
308 F.3d
738
guy,”
wrong
had “the
and that
should
Arsdall,
673,
Delaware v.
475
Van
U.S.
Washington
instead arrest Brooks.
fur-
678-79,
1431,
106
actually
ther
Brooks and of most and “two credi-
lent witnesses” ever come into court- people that will
ble agitation Ignoring Brooks’ obvious
room.” jury, prose- presence
outside specifically also referred cution America, UNITED STATES credibility conferred his de- heightened Plaintiff-Appellee, jury arguments in court. These meanor overwhelming importance to highlight right to Searcy of Clause his Confrontation BENNETT, R. also known as Donald Brooks and Johnson. cross-examine Butch, Defendant-Appellant. that Bowman was about showed No. 02-3176. as an informant Brooks. act neigh- also showed that Johnson’s of Appeals, United States Court tell likely bor overheard Bowman Seventh Circuit. police that Brooks should be arrested for Argued April 2003. Johnson even admitted to drug dealing. speaking neighbor with his in the relevant Decided June period. only piece of information time fact, whether, fully verified was critical information was transmitted from neighbor
Johnson’s to Johnson essence, judge the trial re-
Brooks. Searcy his
fused constitutional simply because Brooks
cross-examination inculpate them-
and Johnson refused believe, This, I on the stand.
selves Even if cross-examination
serious error. matters Brooks and Johnson these