Feb. 5, 2024 – A Wisconsin Court of Appeals decision that a judge’s ex parte message to a jury containing unchallenged factual information was harmless error is not a violation of clearly established federal law, the U.S. Court of Appeals for the Seventh Circuit has ruled in Jewell v. Boughton, No. 22-3082 (Jan. 22, 2024).

As C.F. was walking from a Milwaukee tavern to her car in 2015, a man threatened to shoot her if she didn’t give up her purse.

C.F. fought back, knocking the man’s hat off. The man took C.F.’s purse and drove off, leaving his hat behind.

Photo Array

A DNA test showed that DeShawn Jewell was a major contributor to the DNA in the hat.

Milwaukee Police Department detectives created a “six-pack,” containing Jewell’s photo and the photos of five other men. Jewell’s photo was the second photo in the six-pack.

The detectives also created a photo array, made up of eight folders.

One folder contained Jewell’s photo. Five of the folders each contained the photo of one of the other men in the six-pack; the remaining two folders contained no photos.

Victims IDs Jewell

The Milwaukee County District Attorney filed charges against Jewell.

At trial, the detectives testified that they shuffled the folders and Jewell’s photo ended up third. They also testified that C.F. picked the photo of Jewell as the man who’d robbed her.

C.F. then testified that she was confident that the photo of her assailant would appear in the array because before showing her the folders, one of the detectives said that “he was going to get him.”

Identification an Issue at Trial

At trial, C.F. identified Jewell as her assailant.

Jewell challenged the identification. He argued that:

• the detectives didn’t follow best practices when creating the photo array;

• two of the men whose photos appeared in the array didn’t look like him; and

• the detectives improperly encouraged C.F. to make an identification when showing her the photo array.

Jewell did not challenge the numbering of the photo array or six-pack.

Question from the Jury

Two hours after the jury began its deliberations, the jury asked the judge to see “the six-pack photo.”

The judge sent the six-pack to the jury room. The jury sent back a second note, asking whether the six-pack’s numbering system was “the same as the order as the photo/folder in the photo array?”

Without informing the parties, the judge responded to the second note by saying “No.”

Verdict and Sentencing

Before the judge read the verdict, he informed the parties about the questions from the jury and his response.

Jewell’s attorney said he would have preferred that the jury had been required to rely on its memory of the testimony about the six-pack and the photo array.

But the judge told Jewell’s attorney that if he had raised that issue, he would have overruled him.

The jury convicted Jewell, and the judge sentenced him to eight years in prison and five years of supervised release.

Post-conviction Motion

Jewell filed a post-conviction motion arguing that the trial court violated his Sixth Amendment rights by answering the jury’s question ex parte.

The trial court denied Jewell’s motion. The Wisconsin Court of Appeals affirmed Jewell’s conviction and the trial court’s denial of his post-conviction motion, holding that trial court’s ex parte answer to the jury was harmless error.

Jewell then filed a pro se habeas petition under 28 U.S.C. section 2254 in the U.S. District Court for the Eastern District of Wisconsin. The district court denied the petition and Jewell appealed.

Unreasonable Application?

Judge Joel Flaum began his opinion for a three-judge by explaining that to prevail on his petition, Jewell must show that: 1) the decision by the Wisconsin Court of Appeals was “contrary to, or involved an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court;” and 2) law and justice required relief.

Jewell argued that, by communicating ex parte with the jury, the trial unreasonably applied Champman v. California, 386 U.S. 18 (1967).

In Chapman, the U.S. Supreme Court held that a constitutional error is harmless if the reviewing court can declare that the error was harmless beyond a reasonable doubt.

Flaum concluded that the Wisconsin Court of Appeals erred by looking at the sufficiency of the evidence against Jewell instead of conducting a harmless error review.

But Judge Flaum concluded that the second rationale cited by the Wisconsin Court of Appeals in its decision – that the trial court’s ex parte answer to the jury was factually correct because it relied on undisputed testimony – was legally sound.

Jewell argued that the Wisconsin Court of Appeals failed to consider whether the trial court invaded the jury’s role as the sole factfinder by crediting the detectives’ testimony.

But Judge Flaum pointed to caselaw from the U.S. Court of Appeals for Tenth Circuit holding that a factually accurate ex parte communication from the trial court to the jury was harmless error beyond a reasonable doubt.

Flaum acknowledged that under Seventh Circuit caselaw, a trial court’s ex parte answer to a jury question about dates and times “introduced additional facts that [were] not found in the evidence presented at trial” were not harmless error.

But that case was on direct appeal, Flaum noted, and Jewell’s case was not on direct appeal.

Law and Justice

Judge Flaum concluded that even if had Jewell demonstrated that the Wisconsin Court of Appeals decision violated Chapman, he’d failed to show that the law and justice required relief in his case.

Flaum acknowledged that the trial court’s answers to the jury’s questions may have improperly credited the detective’s testimony.

However, he wrote, “[f]or Jewell’s theory to be accepted, the jury would have had to find the officers so unbelievable that they rejected even unchallenged portions of the officer’s testimony.”

“Moreover, the DNA evidence, identifying Jewell as the ‘major contributor’ on the hat, provided strong independent evidence supporting the jury’s verdict,” Judge Flaum wrote.