Case Information
*1 Before P OSNER , F LAUM , and W ILLIAMS , Circuit Judges. F LAUM , Circuit Judge
. In February 2001, Virgil Hall III was convicted in an Indiana state court of murdering his stepson. Shortly after his verdict came down, Hall discovered that one of the jurors in his case had a son that was a fellow inmate of his. Hall further learned that before his trial, the juror’s son informed the juror that Hall was likely innocent, but during the trial, the juror found out that his son and several co-inmates changed their mind about Hall, and thought him guilty. The juror relayed this extraneous information to several jurors. Upon making these discoveries, Hall filed a motion to correct error, arguing that he was not afforded an impartial jury that decided his case strictly upon the evidence presented. The state court rejected Hall’s motion, and Hall was further denied at the appellate level on direct appeal. After seeking collateral relief in Indiana to no avail, Hall filed a habeas petition in the Northern District of Indiana, arguing, inter alia , that the State should have carried the burden of proving that the extraneous information that reached his jury was not prejudicial. The district court granted Hall’s habeas petition based on our precedent of Wisehart v. Davis , 408 F.3d 321 (7th Cir. 2005), and the State now appeals. For the following reasons, we vacate the ruling of the district court and remand for further proceedings.
I. Background
In December 1999, Hall married Kelli Fetterhoff and became the stepfather of Fetterhoff’s kids — Peyton Fetterhoff (age 3) and Hunter Fetterhoff (age 5). Hall and Fetterhoff also had a child together in April 2000—Devon Hall. In May 2000, Fetterhoff went into town to run errands with Devon, and Hall was left with Hunter and Peyton. Around 11:00 a.m., Hall telephoned the deputy chief of the fire department, asking him for assistance with his stepson Peyton, who, Hall claimed, fell off a swing. When the deputy chief arrived at Hall’s home, he realized that Peyton was very severely injured, and told Hall to call an ambulance. When Peyton arrived at the hospital, a doctor discovered that he had several serious injuries, including a fractured skull and damage to his torso, and that he was lethargic, unresponsive to commands, and had deviated eyes. Peyton was there- fore airlifted to a hospital in Indianapolis. He eventu- ally died due to swelling in his brain.
An autopsy on Peyton’s body was conducted, and it revealed that he suffered at least three separate injuries to his head, a severe injury to his chest, another to his abdomen, a sixth to his scrotum, and a laceration to the ligament that holds his head to his cervical spine. Hall was eventually charged with murder and neglect of a dependent resulting in serious bodily injury.
At trial, Hall changed his story. He suggested that Peyton was sitting on a workbench while Hall was fixing his weed eater and that he accidentally knocked Peyton off the workbench when he yanked on an exten- sion cord to eliminate a knot. He also claimed that Peyton hit a dog cage before he fell to the ground. He explained his prior story about Peyton falling off a swing by suggesting that he did not want to be viewed as a bad father for having knocked his stepson off of a workbench accidentally.
Several doctors testified at trial, debating the possibility that Peyton’s injuries could have been caused by the fall described by Hall and the likelihood that punches or kicks caused the injuries instead. Hall was eventually found guilty of both murder and neglect and sentenced to sixty-five years in prison. After the trial, Hall filed a motion to correct error due to jury misconduct. Hall attached an affidavit to his motion suggesting that a juror was given improper information about Hall’s trial from several third parties. More specifically, the affidavit suggested that David Daniels, a juror, had a son that was incarcerated at the same facility as Hall, and that Daniels’ son told Daniels at the beginning of trial that he thought Hall was innocent. Further along in the trial, Daniels overheard his wife tell another family member that their son and several other members of the cell block no longer believed Hall to be innocent. The affidavit submitted by Hall to the court also sug- gested that Daniels shared this information with the rest of the jury. In response to this motion, the State sub- mitted several affidavits in an attempt to cast doubt on whether the extraneous information ever actually reached the jury, but all courts to consider this matter have determined that the information did reach at least some jurors. The State has not, at this stage, given us any reason to doubt those findings.
After filing his motion to correct error, Hall moved to depose all members of the jury, but the trial court denied this motion, and an interlocutory appeal on the matter to the Court of Appeals of Indiana affirmed this decision. The Indiana courts’ denials of Hall’s request to depose the jury were based on two points: (1) under both Indiana and federal law, jurors cannot testify about the basis for their decision or whether extraneous information had an impact on their decision; and (2) there was already evidence that the extraneous information actually reached the jury by way of Daniels.
Hall’s case was therefore sent back to the Indiana trial court for a hearing to determine whether the extraneous information caused him prejudice. The court ruled that extrinsic communications concerning a contested matter did, in fact, reach the jury, but that Hall was not prejudiced. On direct appeal, Hall argued that the State should have had the burden to prove that the ex- traneous information inserted by Daniels did not prej- udice Hall. The appellate court expressed its discomfort with Indiana law, suggesting that the burden should be on the State to prove that improper, extraneous infor- mation that reaches the jury did not cause prejudice to a defendant. The court nonetheless believed itself to be bound by Indiana Supreme Court precedent, which stated that the burden is on the defendant to show that he was actually prejudiced by an intrusion upon the jury before a new trial can be granted. See Griffin v. State , 754 N.E.2d 899, 901 (Ind. 2001). Because the appellate court was not permitted to consider any testimony from jurors regarding their perception of the effect of the extraneous information, the court believed that it had a dearth of information upon which to rule, and found against Hall simply because the burden was on him to prove prejudice.
Hall’s next move was to seek post-conviction relief through Indiana’s court system. He exhausted all possible post-conviction avenues in Indiana, and then filed a habeas corpus petition in the federal district court in the Northern District of Indiana. Hall included several arguments as to why his conviction should be thrown out, but only one is pertinent to this appeal. Hall argued that the Indiana courts contravened clearly established federal law handed down by the Supreme Court (as required for a habeas petition under 28 U.S.C. § 2254) when they gave Hall the burden of showing that improper communications with a juror in his case resulted in actual prejudice. He argued that Remmer v. United States , 347 U.S. 227 (1954), made it constitu- tionally necessary to place the burden on the State to show that improper communications with a juror were not prejudicial to the defendant, and that our case of Wisehart v. Davis , 408 F.3d 321 (7th Cir. 2005), dubbed Remmer ’s holding to be “clearly established .” The dis- trict court found that it was hard to justify a finding that Remmer ’s holding was still the clearly established law in this area, given the language of subsequent Supreme Court cases as well as a circuit split on the continued viability of , but that Wisehart none- theless required the district court to deem the holding clearly established. Thus, according to the district court, the Indiana courts ruled contrary to clearly established federal constitutional law. Further, the district court found that the error was not harmless, and thus Hall’s habeas petition was granted. The court also held that even though only requires a hearing to deter- mine prejudice, during which the State carries the burden of proof, the Court of Appeals of Indiana observed that the State would not have been able to carry its burden if it had needed to do so. The district court considered this finding reasonable, and thus deferred to the state court in granting Hall either his release or a retrial. The State now appeals, asking us to find that the Indiana courts did not contravene clearly established federal law.
II. Discussion
In reviewing rulings on a petition for habeas relief, we
are restricted to the question of whether a convic-
tion violated “the Constitution, laws, or treaties of the
United States.”
Estelle v. McGuire
,
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court pro- ceeding.
A decision is contrary to clearly established federal law
if it either applies a rule that contradicts a prior
Supreme Court case, or if it reaches a different result
than the Supreme Court has reached on a materially
indistinguishable set of facts.
Williams v. Taylor
, 529 U.S.
362, 405 (2000). In considering whether a state court’s
decision involves an unreasonable application of clearly
established law, we look not to whether the state court
ruled incorrectly, but rather whether the application of
law is unreasonable.
Rastafari v. Anderson
, 278 F.3d 673,
688 (7th Cir. 2002). The application of a law is reasonable
if it is “at least minimally consistent with the facts and
circumstances of the case.”
Schaff v. Snyder
, 190 F.3d
513, 523 (7th Cir. 1999) (quoting
Hennon v. Cooper
, 109
F.3d 330, 335 (7th Cir. 1997)). Because Hall’s challenge is
a constitutional one, he must also convince us that the
alleged error “had substantial and injurious effect or
influence in determining the jury’s verdict” in order to
have his habeas petition granted.
Jones v. Basinger
, 635
F.3d 1030, 1052 (7th Cir. 2011) (quoting
Brecht v.
Abrahamson
,
Hall believes that he has cleared these hurdles. He asserts that under the Sixth and Fourteenth Amend- ments to the Constitution, he had a right to an impartial jury at his murder trial, and that his right was violated when extraneous third-party communications reached the jury, resulting in the possibility that the jury considered more than just the evidence presented at trial. Hall further argues that under , a state is con- stitutionally required to hold a hearing examining the prejudicial effect of such third-party communications, and that a presumption of prejudice must attach to this type of extraneous information (hereinafter referred to as the “ Remmer presumption”). Hall’s state trial court did provide him with a hearing examining the prejudicial effect of the information conveyed to his jury by Juror Daniels, but he argues that the court’s failure to presume prejudice during that hearing was none- theless a violation of his constitutional rights. He maintains that we have already impliedly held the Remmer presumption to be clearly established constitu- tional law in Wisehart , and that thus he is entitled to a grant of his habeas petition.
The State, conversely, does not believe that the Remmer presumption is clearly established federal law applicable to the states. It contends that Supreme Court cases subsequent to have abrogated the presumption, and that even if we disagree on that point, a circuit split on the continuing vitality of the Remmer presumption illustrates the fact that it is not clearly established law. In the alternative, the State argues that the Remmer presumption does not help Hall at this proce- dural posture. The State explains that a habeas peti- tioner must show that he was likely prejudiced by a state’s constitutional error to succeed on a habeas petition, which is essentially the showing that the state trial court required of Hall when it did not presume prejudice in his favor. Thus, according to the State, Hall is in the same position here that he was when the state court denied his claim of presumed prejudice, and his petition must be denied.
As the parties’ arguments illustrate, the questions we
must answer are three-fold: (1) whether the
Remmer
presumption is clearly established federal law applicable
to the states; (2) if it is, whether the Indiana courts acted
contrary to this clearly established rule, or applied it
unreasonably, in placing the burden to show prejudice
from extraneous communications on Hall; and (3) whether
this error had a substantial and injurious effect on Hall.
We begin, therefore, by seeking to determine whether
the presumption is clearly established federal
law applicable to the states. In considering whether
clearly established federal law exists with respect to a
particular issue, we may only consider the holdings of
the U.S. Supreme Court; neither the case law of the
circuits nor dicta found in Supreme Court cases can
establish federal law that binds the states for the
purposes of habeas review.
Williams
,
There is no doubt that itself established a presumption of prejudice applicable when third-party communications concerning a matter at issue in a trial intrude upon a jury. See Remmer , 347 U.S. at 229. In , a criminal case involving the willful evasion of taxes, a juror informed the judge post-verdict that an unnamed third party suggested that the juror could profit by ruling in favor of the defendant. Id. at 228. The judge asked the FBI to investigate, and they deter- mined that the seeming bribe was made in jest. Id. This investigation was conducted ex parte, and the defendant was not aware of its existence until after the trial had ended, at which point he moved for a new trial and lost. Id at 228-29. The defendant appealed to the Supreme Court, which held that “[i]n a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.” Id . at 229. The court further ruled that in these situations, a hearing is necessary, in which the State must carry the heavy burden of showing that the contact with a juror was harmless. Id . The Court remanded to the district court, but the case eventually made its way back up to the Supreme Court, at which time the Supreme Court clarified that “[i]t was the paucity of information *12 12
relating to the entire situation coupled with the presump-
tion which attaches to the kind of facts alleged by peti-
tioner which, in our view, made manifest the need for
a full hearing.”
Remmer v. United States
,
We have no doubt that if
Remmer
still applies with full
force today, Indiana acted contrary to its clear holding.
[1]
The State, however, cites to two more recent Supreme
Court cases that, according to the State’s readings, under-
cut the presumption that was established in
Remmer
.
The first is
Smith v. Phillips
, where a juror applied for a
job in the office of the prosecutor trying the very case
that the juror was hearing.
This interpretation of
Phillips
finds support in the
reasoning of the more recent case of
United States v.
Olano
,
a verdict if there was prejudicial impact. Id . On the topic of presumptions, the Court stated: “There may be [2]
cases where an intrusion should be presumed prejudicial, but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the intrusion affect the jury’s deliberations and thereby its verdict?” Id . at 739. In reaching the conclusion that a presumption of prejudice was not appropriate in Olano , the Court engaged in a fact-based analysis, and reasoned that the error was not “inherently prejudicial,” especially since the lower court gave the alternate jurors an instruction not to participate in the deliberations. Id . at 740-41.
Taking
Phillips
and
Olano
together, two conclusions
seem inescapable: (1) not all suggestions of potential
intrusion upon a jury deserve a presumption of prejudice,
and thus the government does not always carry the
burden of proving prejudice; but (2) there are at
least some instances of intrusion upon a jury which call
for a presumption of prejudice, contrary to the State’s
contention.
See Olano
, 507 U.S. at 739 (“There may
be cases where an intrusion should be presumed prejudi-
cial . . . .”). Our post-
Olano
case law, both in the habeas
and direct-review contexts, is in line with these conclu-
sions. We have interpreted Supreme Court case law
as establishing that the
Remmer
presumption is, in fact,
vital, though its use should not be automatic regardless
of the level of prejudicial impact that is likely to flow
from a given intrusion.
See United States v. Gallardo
, 497
F.3d 727, 736 (7th Cir. 2007) (“The facts of this case do
not rise to the level of the misconduct in , and
no presumption of prejudice is warranted in this case.”);
United States v. Warner
, 498 F.3d 666, 680 (7th Cir. 2007)
(recognizing a
Remmer
presumption, but noting that
“[s]ometimes the circumstances are such that the
Remmer
presumption does not even apply”). What is
more, we have implied, though not stated directly, that
the
Remmer
presumption is clearly established federal
law under AEDPA, meaning state courts must apply
the presumption to avoid running afoul of the
federal Constitution.
See Moore v. Knight
,
In Wisehart v. Davis , for instance, we considered a habeas petition from a defendant that had been con- victed of murder, robbery, burglary, and theft. 408 F.3d at 323. Ten years after the conclusion of that trial, the defendant obtained an affidavit from one of the jurors stating that a third party told the juror that the trial was delayed a day so the defendant could take a polygraph test. Id . at 326. The juror never discovered the results of that test. Id . Despite this extraneous com- munication with the juror, the defendant did not receive a hearing to determine whether the juror — and thus the jury — was impartial. Id . We determined that under , a hearing was due to the defendant. Id . We acknowledged that not every private communica- tion with a juror about a pending trial gives rise to a Remmer hearing, since that rule, taken to its extreme, would produce absurd results. Id . We did determine, however, that requires further inquiry if an “extraneous communication to [a] juror [is] of a character that creates a reasonable suspicion that further inquiry is necessary to determine whether the defendant was de- prived of his right to an impartial jury,” and “[h]ow much inquiry is necessary . . . depends on how likely was the extraneous communication to contaminate the jury’s deliberations.” Id . at 326. This alone is unrelated to whether the presumption is clearly established federal law, we also noted that “it was the state’s burden , given the juror’s affidavit, to present evidence that the jury’s deliberations had not been poisoned by the reference to Wisehart’s having been given a polygraph test.” Id . at 327-28 (emphasis added). Though we did not specifically state that this rule is “clearly established,” Wisehart was a post-AEDPA habeas case, and thus the Remmer presumption must have been clearly established in order to be relevant under AEDPA. See 28 U.S.C. § 2254(d).
Thus, we have already decided that the
Remmer
pre-
sumption is clearly established federal law as defined
by AEDPA. The State asks us to reconsider our position.
It argues that there is a significant circuit split on
whether and when the
Remmer
presumption ought to
obtain, and thus cannot be considered clearly estab-
lished law, nor serve to overturn Hall’s conviction.
The State cites two circuits that held, either explicitly
or implicitly, that the presumption no longer
exists.
See United States v. Rowe
, 906 F.2d 654, 656
(11th Cir. 1990) (“Prejudice is not presumed. The de-
fendant has the burden of demonstrating prejudice by a
preponderance of credible evidence.”);
United States v.
Pennell
, 737 F.2d 521, 532 (6th Cir. 1984) (“In light of
Phillips
, the burden of proof rests upon a defendant to
demonstrate that unauthorized communications with
jurors resulted in actual juror partiality. Prejudice is not
to be presumed.”). These cases, however, were decided
before
Olano
was issued by the Supreme Court. To
the extent that they are still good law in their respec-
tive circuits, we respectfully conclude that they con-
stitute an unreasonable interpretation of Supreme Court
law, given the clear language in
Olano
that explains, “There
may be cases where an intrusion should be presumed
prejudicial.”
The State also cites the Tenth Circuit case of
Crease
v. McKune
, which held that the presumption is
a rule of federal criminal procedure, not constitutional
law, and thus is not applicable to the states. 189 F.3d
1188, 1193 (10th Cir. 1999). As is clear from the discus-
sion above, our case law has assumed that the
Remmer
presumption, like
Remmer
hearings generally, is a
federal constitutional necessity in the proper factual
scenarios.
See Wisehart,
408 F.3d at 326-28;
Moore
, 368
F.3d at 942-43;
Whitehead
, 263 F.3d 708.
Accord Fullwood
v. Lee
, 290 F.3d 663, 678 (4th Cir. 2002) (stating, “We
have applied
Remmer
in the federal habeas context,”
and noting that puts the burden on the State
to show prejudice when an improper communication
with a juror has taken place). The State has not given
us a reason to revisit our position other than the fact
that the Tenth Circuit disagrees, and the Tenth Circuit’s
reasoning does not convince us either. In
Crease
, the
Tenth Circuit’s sole justification for finding the
Remmer
presumption to be a procedural rule is the fact that
“the mere occurrence of an ex parte conversation
between a trial judge and a juror does not constitute a
deprivation of any constitutional right.”
The remainder of inconsistent case law cited by the
State relates not to whether the
Remmer
presumption
exists, but when the
Remmer
presumption ought to be
employed. The State is correct that there has been
much debate on this issue. The Fourth Circuit still
firmly holds that the presumption is alive and
well, provided that “more than innocuous interven-
tions” have taken place.
United States v. Cheek
, 94 F.3d
136, 141 (4th Cir. 1996) (quoting
Haley v. Blue Ridge Transfer
Co.,
Taking these cases together, as well as the actual lan-
guage used by the Supreme Court, what seems to be
“clearly established” is that federal constitutional law
maintains a presumption of prejudice in at least some
intrusion cases. The standard applied by the Court of
Appeals of Indiana requires that a defendant prove that
he was probably harmed by an extraneous communica-
tion had with a juror, which leaves no room for the poten-
tial for a presumption, in contravention of
Remmer
and
Olano
.
See Hall v. State
,
To start, we believe that the Ninth Circuit’s narrow
interpretation of the
Remmer
presumption is highly ques-
tionable in light of Supreme Court precedent. As noted
above, and as we have recognized in the past, the
Ninth Circuit has limited the
Remmer
presumption to cases
of jury tampering.
See Whitehead
, 263 F.3d at 724 (citing
Dutkel
, 192 F.3d at 895). In our opinion, whether this is
a reasonable reading of
Remmer
and its progeny depends
upon how “jury tampering” is defined. If “jury tampering”
can be understood to include extraneous contacts
with jurors that are not made with the intention of af-
fecting the jury’s verdict, then this limitation placed
upon
Remmer
may be reasonable. If, however, “jury
tampering”
is confined
to considered attempts
at altering the jury’s deliberations or verdict, this inter-
pretation of the presumption is too narrow to
account for the language in both
Olano
and
Remmer
itself. established a presumption of prejudice
for “any private communication, contact,
or
tampering
directly or indirectly, with a juror during a trial about
the matter pending.” 347 U.S. at 229 (emphasis added).
The disjunctive nature of that statement clearly indicates
that the procedural requirements established by
Remmer
are triggered by more than just tampering cases. One
could reasonably hold — as many circuits have — that
Phillips
and
Olano
have narrowed
Remmer
, thus creating
the possibility that the
Remmer
presumption no longer
applies to non-tampering cases.
Olano
, however, was not
a tampering case — it involved alternate jurors observing
the regular jury’s deliberations. If the
Remmer
presump-
tion had been narrowed to apply only to tampering
cases, the Court could have disposed of the presumption
argument in
Olano
in a single sentence by noting that
fact; instead, the Court engaged in a factual analysis
to illustrate why the presence of alternate jurors at delib-
erations is not “inherently prejudicial.”
Olano
,
Excluding the Ninth Circuit’s potentially problematic interpretation of the Remmer presumption, this case falls close enough to the facts of Remmer to easily earn a pre- sumption of prejudice under the remaining - presumption tests advanced by the circuits. For one, this case is closer to than it is to Phillips and Olano . In Phillips , the potential bias of a juror was wholly unre- lated to the Phillips trial itself, but rather involved a relationship between a juror and the prosecutor’s office. Phillips , 455 U.S. at 212. The potential intrusion in Olano was even more innocuous. The possibility of prejudice could have only arisen from the mere presence of alternate jurors during deliberations, rather than any verbal communication, since there was “no specific showing that the alternate jurors in [the] case either participated in the jury’s deliberations or ‘chilled’ delibera- tions by the regular jurors.” Olano , 507 U.S. at 739. This case, conversely, involved a third-party communication with a juror about the ultimate question of the pending case to be decided by the jury. Like the phony bribe offer and subsequent FBI investigation in Remmer , the information conveyed to Hall’s jury could have had a great impact on an average juror’s deliberation. The Court of Appeals of Indiana recognized as much when it stated:
In the case at bar, the extraneous information con- cerned Hall’s fellow inmates’ opinions of his innocence and guilt. The fact that the inmates lived with Hall and once believed he was innocent, but changed their belief to guilt, renders the impression that the inmates had a special insight into Hall’s guilt — seemingly gained as a result of their frequent contact with Hall and ability to see Hall when he had not composed himself for a jury. As such, if the jury allowed themselves to consider this informa- tion, there can be little doubt that the information had a prejudicial impact on the verdict obtained.
Hall v. State
, 796 N.E.2d at 398. Even under a
narrow reading of that permits a presumption
of prejudice only where there is a likelihood of prejudice,
Williams-Davis
, 90 F.3d at 497, or where “there is an
egregious tampering or third party communication
which directly injects itself into the jury process,”
Boylan
,
As it turns out, however, Hall’s initial victory is more
theoretical than practical, since he still must establish
that he was prejudiced by the state courts’ constitutional
error. Due to the concerns of federalism, finality, and
comity that attend habeas proceedings, a habeas
petitioner must show that a constitutional error was not
harmless to succeed on his petition.
See Basinger
, 635 F.3d
at 1052
.
More specifically, he must show that the constitu-
tional error had a “substantial and injurious effect” on
the outcome of his case.
Rodriguez v. Montgomery
, 594
F.3d 548, 551 (7th Cir. 2010). This is, in effect, an “actual
prejudice” test.
Basinger
, 635 F.3d at 1052
.
The
Remmer
presumption is meant to protect against the potential
Sixth Amendment harms of extraneous information
reaching the jury, but a state court’s failure to apply the
presumption only results in actual prejudice if the jury’s
verdict was tainted by such information.
Accord Oliver v.
Quarterman
,
The Indiana courts claim to have made a factual finding that Hall could not show prejudice due to the information that Juror Daniels shared with the rest of Hall’s jury. In collateral review, we must “respect the factual findings of state courts.” Green v. Peters , 36 F.3d 602, 611 (7th Cir. 1994) (citing Sumner v. Mata , 455 U.S. 591, 598 (1982)). In fact, “[a] state court’s factual findings are ‘presumed to be correct’ in a federal habeas corpus proceeding unless they are rebutted by ‘clear and convincing evidence.’ ” Carter v. Thompson , ___ F.3d ___, 2012 WL 3290152, *1 (7th Cir. 2012) (citing 28 U.S.C. § 2254(e)(1)). Upon review of the reasoning behind the state court’s “factual determination” regarding prejudice, however, it is clear that the state court did not actually make a factual finding, but rather decided not to decide. As we mentioned previously, the Court of Appeals of Indiana believed that “if the jury allowed themselves to consider [the information about Hall’s fellow inmates], there can be little doubt that the information had a prejudicial impact on the verdict ob- tained.” Hall v. State , 796 N.E.2d at 398. But Indiana courts, as with federal courts under Federal Rule of Evidence 606(b), are “precluded from considering any information . . . indicating how . . . extrinsic information affected the jury’s decision -making process.” Id. at 397. The state court determined that there was a lack of proof regarding whether the jurors actually took the highly prejudicial information into consideration when deciding upon their verdict, so no prejudice could be shown. According to the court, “the placement of the burden of proof is everything,” and “Hall, as the party with the burden of proof under current Indiana law, necessarily loses.” Id. at 398. Under this standard of proof, prejudice could never be shown in a scenario where extraneous information has reached a jury, re- gardless of the level of prejudicial risk, since the court essentially required that Hall present evidence that is literally forbidden under Indiana’s — and the federal courts’ — procedural rules. What the state courts should have done, at least to satisfy their federal con- stitutional obligations, is:
to limit the questions asked the jurors to whether the communication was made and what it con- tained, and then, having determined that communica- tion took place and what exactly it said, to deter- mine — without asking the jurors anything further and emphatically without asking them what role the communication played in their thoughts or dis- cussion — whether there is a reasonable possibility that the communication altered their verdict.
Haugh v. Jones & Laughlin Steel Corp.
,
On the limited record that we have before us, it is clear that Hall has provided enough of a factual foundation, absent any countervailing evidence, to suggest that he was prejudiced by the information acquired and shared by Juror Daniels. Through affidavits, Hall proved that highly prejudicial information about the ultimate question in his criminal case reached several members of his jury. This, with no further infor- mation about the case, gives us “grave doubt as to the harmlessness” of such an intrusion upon Hall’s jury. See Basinger , 635 F.3d at 1052 (quoting O’Neal , 513 U.S. at 445). But in deciding whether extraneous informa- tion that reached the jury was likely to have prejudiced a defendant, there is more to consider than just the nature of the extraneous information; a court may also consider, among other things, “the power of [any] curative instructions,” Warner , 498 F.3d at 681, and the strength of the legitimate evidence presented by the State, cf. Haugh , 949 F.2d at 919 (considering the fact that the de- fendant’s trial was “very close” in deciding whether there was a reasonable probability of prejudice). See also McNair v. Campbell , 416 F.3d 1291, 1307-08 (11th Cir. 2005) (“[T]he factors to be considered include the heavy burden on the State, the nature of the extrinsic evidence, how the evidence reached the jury, and the strength of the State’s case.”). If, hypothetically, the legitimate evi- dence presented by the State in a habeas petitioner’s case was overwhelming, and the trial judge in such a case gave a stern pre-verdict warning to the jurors to only consider facts that were presented during trial, concerns about the prejudicial impact of extraneous information might be lessened.
As for Hall’s trial, this is information that we do not have and, due to our appellate status, cannot obtain. Thus, while we agree with the district court that the Court of Appeals of Indiana acted contrary to clearly established federal law, we are uncertain as to whether he was actually prejudiced by the state courts’ constitu- tional error, given the dearth of information before us. It may be a significant challenge for the State to convince the district court that such highly prejudicial information might not have had an impact on the jury’s verdict, but this is a matter better addressed by a trial court. We therefore must vacate the district court’s grant of Hall’s habeas petition and remand to the district court. It is there that the State will have an opportunity to show, despite the strong evidence of prejudice already presented by Hall, that countervailing facts would have alleviated concerns of a prejudiced jury.
III. Conclusion
For the reasons stated, we R EVERSE the judgement of the district court and R EMAND for a hearing to deter- mine whether Hall was prejudiced by extraneous infor- mation that reached his jury.
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Notes
[1] This assumes, of course, that the presumption is a constitutional necessity, and thus is a rule that must be followed by the states — a matter which is discussed below.
[2] In Olano , the Court’s discussion of presumptions was situ- ated in the context of Federal Rule of Criminal Procedure 52(b) analysis, 507 U.S. at 740, which implies the possibility that the presumption at issue in Olano was unrelated to the constitutional dictates of Remmer . In an earlier portion of the Olano opinion, however, the Court relied on constitutional intrusion cases for their reasoning (including Remmer ), and intimated that the prejudice analysis in those constitutional contexts was analogous to the analysis employed under Rule 52(b). Id. at 739. Immediately following a discussion that referenced the prejudice analysis that took place in , the Court clarified that “the issue here is whether the alter- nates’ presence sufficed to establish remedial authority under Rule 52(b), not whether it violated the Sixth Amendment or Due Process Clause, but we see no reason to depart form the normal interpretation of the phrase ‘affecting substantial rights,’ ” which includes prejudice analysis. Id .