In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-1632

MARK A. WISEHART,

Petitioner-Appellant,

v.

CECIL DAVIS,

Respondent-Appellee.

____________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 98 C 1027—Larry J. McKinney, Chief Judge.

____________

ARGUED MARCH 23, 2005—DECIDED MAY 10, 2005

____________

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.
2 No. 04-1632

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 (1999);

Brady v. Maryland, 373 U.S. 83, 87 (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,
No. 04-1632 3

405 U.S. 150, 152-55 (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 (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 (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 longdistance 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
4 No. 04-1632

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
No. 04-1632 5

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
6 No. 04-1632

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 consideration? Had the prosecutor testified that of course the state didn’t want to risk losing a

witness in a capital case merely to be able to convict the

witness of burglary, this would not have helped Wisehart.

Yet “certainly Johnson was aware of the benefits he was

receiving for providing what the police thought to be valuable testimony.” 693 N.E.2d at 58 n. 50. And it’s just a step

from that to thinking that it would have been reasonable for

Johnson to assume that if he failed to cooperate, the state

might revive the charges against him. He thus had something to gain by testifying against Wisehart and much to

lose if he stopped cooperating. But this just brings us back

to the problem of indefinite boundaries. A criminal trial

must not be allowed to turn into an inquiry into disparate

treatment of criminals, with the witness being asked

whether he’d received any benefit that he would not have

received had the state not wanted his testimony and whether

therefore he feared retaliation if he stopped playing ball. In

sum, we cannot say that the Indiana Supreme Court’s ruling

“was contrary to, or involved an unreasonable application
No. 04-1632 7

of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

The other issue presented by the appeal is whether

Wisehart was deprived of his right to trial by an impartial

jury. In a postconviction hearing conducted more than a

decade after his trial, Wisehart presented an affidavit from

one of the jurors that stated: “I learned that Mark Wisehart

had taken a polygraph test. The jury had been brought to

the courthouse, and was preparing to begin court when we

were told court would not be held that day. I learned the

court session had been canceled because Mark Wisehart was

to take a polygraph test. I do not recall who gave me the

information about the polygraph. After the polygraph, the

trial continued, and I never learned the results of [the]

polygraph test.” No effort was made to call the juror as a

witness in an effort to obtain further detail of the incident,

and no other factual inquiry was conducted; the quoted passage is the entire information we have about the incident.

Wisehart points to the statement in the Supreme Court’s

decision in Remmer v. United States, 347 U.S. 227, 229 (1954),

that “in 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 . . . . The

presumption is not conclusive, but the burden rests heavily

upon the Government to establish, after notice to and hearing of the defendant, that such contact with the jury was

harmless to the defendant.” Ripped from its context, the

statement is difficult to take seriously, because it is so easy

to imagine situations in which a “private communication . . .

with a juror during a trial about the matter pending before

the jury” would not create a rational presumption of

prejudice. Suppose a juror’s spouse said to the juror, “I saw

you on television in the jury box, and you looked great.”
8 No. 04-1632

That would be a private communication concerning the case,

but it would not be suggestive of jury tampering. General

language does not decide particular cases, as Holmes liked

to say. Judges expect their pronunciamentos to be read in

context, which in Remmer, as the Court went on explain,

involved “the sending of an F.B.I. agent in the midst of a

trial to investigate a juror as to his conduct”—something

that “is bound to impress the juror and is very apt to do so

unduly. A juror must feel free to exercise his functions without the F.B.I. or anyone else looking over his shoulder.” Id.

In short—and the subsequent case law is in accord with

this interpretation of Remmer—the extraneous communication to the juror must be of a character that creates a

reasonable suspicion that further inquiry is necessary to

determine whether the defendant was deprived of his right

to an impartial jury. How much inquiry is necessary (perhaps very little, or even none) depends on how likely was

the extraneous communication to contaminate the jury’s

deliberations. Evans v. Young, 854 F.2d 1081, 1083-84 (7th

Cir. 1988); Dyer v. Calderon, 151 F.3d 970, 974-75 (9th Cir.

1998) (en banc); United States v. Williams-Davis, 90 F.3d 490,

499-501 (D.C. Cir. 1996); see generally Oswald v. Bertrand,

374 F.3d 475, 477-78, 480 (7th Cir. 2004). The Indiana

Supreme Court failed to apply this test or any reasonable

variant of it. All the court said was that Wisehart had failed

to present “live testimony” or any other evidence besides

the affidavit, that the affidavit didn’t indicate that the jury

had been biased as a result of learning about the polygraph

test, and that there is no indication that any other jurors

learned about it. The first point is irrelevant; the affidavit was

evidence. The second point shows only that the affidavit

does not prove that the juror was biased but merely raises a

suspicion. The third point is irrelevant, because a defendant

is entitled to be tried by a jury no member of which has a
No. 04-1632 9

bias induced by extraneous matter. Williams v. Bagley, 380

F.3d 932, 943-44 (6th Cir. 2004); United States v. Brande, 329

F.3d 1173, 1178 (9th Cir. 2003); see also Morgan v. Illinois, 504

U.S. 719, 729 (1992); Smith v. Phillips, 455 U.S. 209 (1982);

Remmer v. United States, supra, 347 U.S. at 229.

The affidavit was sufficient to necessitate a further inquiry

at which the judge would have asked the juror how she had

reacted to learning about the polygraph test. From the fact

that the trial resumed after the test had she assumed that

Wisehart had flunked it? If so, had she thought polygraph

tests such reliable detectors of lies that she inferred that

Wisehart must be guilty? The reliability of polygraph tests

remains an open question (see references in United States v.

Scheffer, 523 U.S. 303, 309-12 (1998); id. at 333 (dissenting

opinion); see also United States v. Lea, 249 F.3d 632, 638 (7th

Cir. 2001); King v. Trippett, 192 F.3d 517, 522 (6th Cir. 1999);

Hubbard v. State, 742 N.E.2d 919, 924 (Ind. 2001)), but some

laypeople may think them infallible. United States v. Scheffer,

supra, 523 U.S. at 313-14. Indiana worries about this; the

prosecutor would have violated Indiana law had he told the

jury that Wisehart had taken a polygraph test and flunked,

since Wisehart hadn’t stipulated to the admissibility of the

test results. Willey v. State, 712 N.E.2d 434, 439-40 (Ind.

1999); Wisehart v. State, supra, 693 N.E.2d at 63 n. 72; Sanchez

v. State, 675 N.E.2d 306, 308 (Ind. 1996).

It doesn’t follow that permitting such evidence to be given

in a criminal trial would violate the Constitution; a violation

of a state’s rule on the admissibility of evidence is not a

violation of federal law. But it does follow that smuggling

the defendant’s test result into the jury room would have

required a hearing under the Remmer line of cases. The

concern with extraneous material in the jury room is not

limited to material that would be inadmissible at trial; if

news about a defendant’s having taken a polygraph test
10 No. 04-1632

reaches the jurors under the table as it were, the defendant

is denied an ability to put the results in—to explain for

example that he had passed the test, or at least not failed it;

to describe the weaknesses of lie detectors; and in short to

pull, or at least try to pull, the sting.

What happened in this case was not so egregious as telling the jury sub rosa that Wisehart had taken and flunked a

polygraph test. But it was bad enough to require a hearing,

however abbreviated, to determine what impact the news

that he had taken the test had on the jury.

Back in 1994 it would have been relatively easy to call the

juror as a witness and ask her to explain her reaction to

learning about the polygraph test, though she might have

forgotten because the trial had been conducted in 1983. It

will be all the more difficult today to reconstruct an incident

now more than twenty years in the past. But 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.

The judgment must therefore be vacated with directions

that the state release Wisehart, retry him, or conduct a

further postconviction hearing addressed to the issue of jury

bias.
No. 04-1632 11

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-10-05