Derrick Searcy v. Danny D. Jaimet, Warden, Hill Correctional Center

CUDAHY, Circuit Judge,

dissenting.

As the district court and the majority have both recognized, this case boils down to balancing Searcy’s constitutional right to confront his accusers against a requirement that he make a more or less conclusive showing (as an evidentiary foundation) that Brooks and Johnson were aware of Bowman’s informant activities. The district court held that the Illinois courts had struck an unreasonable balance, while the majority believes that those courts reached “one of several equally plausible outcomes,” even if not the “preferred” one. Maj. op. at 1091. I agree with the district court that the state balancing was so lopsided as to amount to an unreasonable application of Supreme Court precedent. The difference between the state view and an appropriate federal view is more than the minor discrepancy that the majority would countenance in an exercise of deference.

Since the majority opinion does an admirable job of laying out the relevant facts, I shall stress only a few key points. First, Brooks and Johnson were not merely central to the prosecution’s case — they were the case. The prosecution’s only evidence tying Searcy to Bowman’s murder was the testimony of Brooks and Johnson; there was no physical evidence at all (indeed, the *1093medical evidence strongly suggested that at least part of Brooks’ testimony was false). Brooks and Johnson came forward with their eyewitness accounts almost a full year after the murder had taken place, although they had been interviewed by the police on the day of the murder. Second, Searcy’s defense at trial was that Brooks and Johnson were the guilty parties. To support this theory, Searcy needed to demonstrate to the jury a potential motive for Brooks and Johnson to murder Bowman. Searcy planned to show such a motive by cross-examining Brooks and Johnson on their rumored membership in a gang that sold narcotics in competition with Bowman and their probable awareness of the fact that Bowman was cooperating with police as an informant on Brooks’ drug activities. Both lines of cross-examination were, as recounted in the majority opinion, denied.

Third, Searcy offered outside of the jury’s presence substantial evidence connecting Brooks and Johnson to knowledge of Bowman’s informant activities. Chicago police officer Donald Washington swore in an affidavit that he and another officer had arrested Bowman three months before his murder. At that time, in the presence of Clinton Boyd, who was a neighbor of Johnson, Bowman protested that Washington had “the wrong guy,” and that he should instead arrest Brooks. Washington further swore that Bowman was actually in negotiations to act as an informant against Brooks before Bowman was murdered. Of course, Brooks denied knowledge of these facts, but when questioned outside the presence of the jury about them, he became quite agitated, prompting the trial judge to instruct Brooks to “remain calm” and “restrain [himself].” Johnson acknowledged speaking to Boyd in the time between Bowman’s arrest and Bowman’s death, though only casually and not about Bowman.

The decisions of the Illinois courts here cannot be reconciled with the abundant precedent that protects a defendant’s constitutional right to probe bias and motive of prosecution witnesses in cross-examination before the jury. See, e.g., Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (“The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony.”) (internal quotation marks omitted); Redmond v. Kingston, 240 F.3d 590, 593 (7th Cir.2001) (“ ‘[W]hile generally applicable evidentiary rules limit inquiry into specific instances of conduct through the use of extrinsic evidence and through cross-examination with respect to general credibility attacks, ... no such limit applies to credibility attacks based upon motive or bias.’ ” (quoting Quinn v. Haynes, 234 F.3d 837, 845 (4th Cir.2000))). Trial courts must permit defendants “to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis, 415 U.S. at 318, 94 S.Ct. 1105. “Limitations on cross examination rise to the level of a Sixth Amendment violation when they prevent the exposure of a witness’s bias and motivation to lie.” United States v. Smith, 308 F.3d 726, 738 (7th Cir.2002) (citing Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). The importance of the right of cross-examination is heightened when the testimony of the witness in question is the only evidence directly linking the defendant to the crime. Olden v. Kentucky, 488 U.S. 227, 233, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); Davis, 415 U.S. at 317-20, 94 S.Ct. 1105. Where a witness’s testimony is “virtually the only evidence of [the defendant’s] guilt,” the witness’s credibility becomes the “central issue in the case.” Redmond, 240 F.3d at 592. The Confron*1094tation Clause requires that a defendant be allowed to question such key witnesses so that the jury can “make an informed judgment as to the weight to place on ... testimony which provide[s] a crucial link in the proof’ against the defendant. Davis, 415 U.S. at 317, 94 S.Ct. 1105 (internal quotation marks omitted).

Even though the denial here of effective cross-examination seems erroneous in itself, the prosecutor’s closing arguments made that denial even more prejudicial: “Where is [Brooks’ and Johnson’s] motive? We have all these little shadowy insinuations, all these speculations about drugs .... How does that tie into [Brooks and Johnson]? ... There is no evidence folks.” The prosecution referred to Brooks and Johnson as “heroes,” “excellent witnesses” and “two of the most credible people that will ever come into a courtroom.” Ignoring Brooks’ obvious agitation outside the presence of the jury, the prosecution also referred specifically to the heightened credibility conferred by his demeanor in court. These jury arguments highlight the overwhelming importance to Searcy of his Confrontation Clause right to cross-examine Brooks and Johnson.

Searcy showed that Bowman was about to act as an informant against Brooks. Searcy also showed that Johnson’s neighbor had likely overheard Bowman tell the police that Brooks should be arrested for drug dealing. Johnson even admitted to speaking with his neighbor in the relevant time period. The only piece of information not fully verified was whether, in fact, the critical information was transmitted from Johnson’s neighbor to Johnson and Brooks. In essence, the trial judge refused Searcy his constitutional right to cross-examination simply because Brooks and Johnson refused to inculpate themselves on the stand. This, I believe, was a serious error. Even if cross-examination of Brooks and Johnson on these matters had resulted in denials, cross-examination would have permitted the jury to observe Brooks’ agitated demeanor when confronted. See Henry v. Speckard, 22 F.3d 1209, 1215 (2d Cir.1994) (explaining that “the witness may well answer bias-probing questions in the negative; but the matter of whether her answers should be believed or disbelieved is within the sole province of the jury”). Balanced against the crucial significance of Brooks’ and Johnson’s testimony, the purported “missing link” in Se-arcy’s motive evidence hardly presented a sufficient degree of speculation to justify denial of his Sixth Amendment rights.

I therefore respectfully dissent.