dissenting.
The majority, in bolstering its decision, draws on an example we mentioned in Walberg v. Israel, 766 F.2d 1071 (7th Cir.1985), observing that if police have an airtight case they nevertheless cannot take an obviously guilty defendant “directly to the penitentiary on the ground that a trial would be a waste of time for someone so patently guilty.” But is this what happened here? No. Is this even remotely close to what happened here? No, again. Fifty prospective jurors were questioned over 4 days; the state trial judge granted 21 out of 27 of Oswald’s challenges for cause of potential jurors; the jury heard from numerous witnesses and examined many exhibits during the 3 weeks it took to complete the trial. Yet today, the court orders new tickets to this old show for reasons that, in my view, cannot support such a drastic step.
I agree with the majority’s announcement that AEDPA requires us to grant deference, under 28 U.S.C. § 2254(d)(1), to the 1999 decision of the Wisconsin Court of Appeals rejecting Oswald’s direct state appeal. State v. Oswald, 232 Wis.2d 62, 606 N.W.2d 207. But after making that determination, the majority proceeds first to offer its independent view of the facts involving the jury selection process. It then concludes that the Wisconsin Court of Appeals’ “condonation of the lack of a minimally timely, minimally adequate, investigation was an unreasonable application of Remmer v. United States and Smith v. Phillips, and is therefore subject to correction in this habeas corpus proceeding.” Why is the Wisconsin court’s conclusion unreasonable? The answer seems to be that the majority considers the state court’s discussion of the issue to be “perfunctory.” This is where the majority loses me. Giving the Wisconsin Court of Appeals’ decision the deference to which it is due under AEDPA, I cannot agree that it was either perfunctory or unreasonable. I would not order a do-over of Oswald’s trial.
*485The majority takes the drastic step of ordering a retrial because it detects problems in the jury selection process based on statements made by two potential jurors. First, it is troubled by the statement of prospective juror Roger Klitzka during voir dire. Klitzka, however, never made it into the jury box for the trial. And his statement that potential jurors were “discussing the case” (whatever that means — it could cover things like how long the trial will take and whether or not the jury would be locked up) found no support, as the majority notes, from two of the three potential jurors who were subsequently asked about it. More importantly, his statement about waiting room conversations does not, in my view, cast doubt on the willingness of the jurors actually selected for service to give Oswald a fair shake on his defense.
Second, the majority is concerned about juror William Schuenke who, like a lot of people summoned for what will be lengthy jury service, preferred to be elsewhere. He said he was “concerned about my work” and might not be able to give the “trial all the attention it should receive ....” Schuenke never said he rejected out-of-hand Oswald’s potential defense of coercion. He was asked, “Do you feel like you have an open mind with respect to any possible defenses that I might offer for my client?” His answer was “Yeah.” The follow-up question was, “I guess that’s all I’m trying to find out is whether based on what you’ve read or heard you feel that there’s something you wouldn’t listen to or wouldn’t even consider if it was evidence in the case?” The answer: “No.”
From the minor problems with Klitzka and Schuenke, mere snippets of events over a 4-day period, the majority jumps to the unfounded conclusion that there is “a high probability that some, maybe all, of the jurors who tried Oswald were biased.” On this flimsy foundation, the majority strains to build a case for requiring a retrial.
From what the majority says, one might conclude that the Wisconsin Court of Appeals brushed off the issue involving juror bias with a paragraph or two. The fact is that the court spent 18 pages on jury issues. I would be the last person to say the length equals quality, but length certainly seems to indicate a lack of perfunc-toriness. Unlike my colleagues, the Wisconsin court discussed in some detail the postconviction hearing on Oswald’s motion for a new trial, which included the jury issue.
The Wisconsin Court of Appeals set the matter in context, noting that this was an unusual case “not only because of the enormous media coverage of the charged criminal activities, but also because of defense counsel’s plan to turn the media coverage into a positive factor for his client.” The media consistently portrayed Oswald as an “impressionable teenager who was victimized by his abusive and manipulating father.” The defense strategy, the court said, was that jurors who had heard and seen the extensive media coverage might be sympathetic to him. Given the facts of this case, I can’t disagree with Oswald’s lawyer’s belief that sympathy, although at best a Hail Mary defense, was probably his client’s best chance for any sort of success.
Oswald’s focus during the jury selection process was not on whether the prospective jurors thought that he was “involved,” to use the carefully chosen words of Juror Schuenke, or “guilty,” meaning much the same as “involved” to lay jurors. In fact, a videotape showing much of the drama was going to be presented as evidence at trial. Oswald was not going to claim that he was sitting in the bleachers at Wrigley Field at the time of the shoot-out. He was *486not going to argue that a twin brother, not he, was “involved.” Rather, he was planning to minimize his role by placing responsibility for the crimes on his father. He was looking for jurors who would be open-minded to his defense that his father made him do it. For instance, a juror was asked whether her feelings would prevent her “from considering a defense of coercion if the Judge instructed [her] to consider it?” Whether that strategy would work is not an issue for us, yet I certainly agree with the majority’s observation that any such “Manchurian Candidate” defense would be “highly unlikely to persuade a jury.”
Given Oswald’s trial strategy, the decision not to request a change of venue becomes explicable. One juror, no doubt, gave the defense hope that the strategy might possibly work. During voir dire, she said that she and her husband were “talking about the possible defense and the fact that, you know, the father having abused or having mentally abused ....” If the media coverage had, in fact, been a positive factor for Oswald, it would have been a strong one; nearly all of the 156 prospective jurors who received questionnaires had even seen a television videotape of the shoot-out.
Given that Oswald’s strategic choice was to keep this very high-profile trial in Waukesha County, it would have been absurd for him to think he could find jurors who could truthfully say they had not seen the videotape showing him in the van during .the shoot-out. It would also be absurd to think that it would be possible to find honest potential jurors who, based on their viewing of the tape, did not think that Oswald was “guilty” in the sense that laypersons use the term “guilty”. On this issue, the reasoning of the Wisconsin Court of Appeals bears repeating:
In his brief, Oswald claims that all the prospective jurors expressed strong opinions that he was guilty. These opinions, he argues, go “straight to the heart of the issue: their ability to presume the defendant innocent unless proven guilty of the charges.” However, the facts and circumstances of this case reveal that this statement is incorrect. For Oswald, the heart of the issue during voir dire was securing a jury amendable to his coercion defense strategy. As a part of this strategy, Oswald was opting not to contest his participation in the crimes. His tactical decision was not to protest his guilt. This strategy involved searching for a particular type of juror; this ideal juror would not presume that Oswald was innocent but would be influenced by the media coverage and also could be supportive of a coercion defense. The particular type of juror that Oswald sought is an important circumstance surrounding the voir dire.
In addition, prospective juror after prospective juror was asked whether he or she could “set aside whatever it is that you may have already heard or seen that you know is out there someplace, could you set aside that and deal only with what is presented during the trial?” The answers varied from a forthright “yes” to more thoughtful answers indicating that the juror would try or would hope that he could. Reading the transcript, one senses the struggle that the prospective jurors were going through in their attempt, at least in many cases, to give honest answers. To now look at the cold record and say that they knew too much should not be sanctioned by this court.
As to specific alleged juror misconduct, the defense was given a full opportunity to explore the issue at a postconviction hearing. But all that was offered in the way of evidence was the testimony of one prospec*487tive juror (Jacqueline M.) who was stricken from the panel. The trial court found that she was not credible for several reasons, including the fact that she had given several false answers on her juror questionnaire. The Wisconsin Court of Appeals discussed the testimony at some length and set out the reasons for the finding that it was incredible. It then upheld the trial court’s conclusion that a new trial was not warranted. Even if some judges on this court disagree with that conclusion, it seems to me that it is hard to say it is “unreasonable” under AEDPA. After all, “compelling institutional considerations” require that we afford deference to the trial court as it has the primary responsibility to evaluate possible influence on the jury. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The state trial court, backed up by the Wisconsin Court of Appeals, did not make an unreasonable call.
Supreme Court cases make clear that, even before AEDPA, a state court’s findings are entitled to deference. In Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), during voir dire, a juror and two alternates expressed that they would have required evidence to overcome their beliefs that the defendant was guilty. The trial judge asked if they could set aside that opinion and accepted their answers that they could. The Court applied the presumption of correctness to the trial court’s resolution of the issue. Interestingly enough, the Court also noted that potential jurors are people who are unused to being questioned by lawyers in court and “cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially.” At 1039. In this case, federal appellate judges sitting in Chicago should be slow to condemn the factual determinations of a state circuit judge in Waukesha County, Wisconsin — a judge who presided over a lengthy 4-day jury selection process in a high profile, high publicity case kept in the county as a result of a strategic defense decision not to try and have it moved.
Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), involved a juror who had applied to be an investigator in the prosecutor’s office, a fact the prosecuting attorneys found out during trial but withheld from the court. A hearing was held after trial, and the judge found no evidence suggesting a sinister motive on the part of the juror, which would have disqualified him. When the case came to federal court, the district court granted the petition for a writ of habeas corpus and the Court of Appeals affirmed (but on different grounds). The Supreme Court found the hearing held by the state trial court to be sufficient:
[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.
At 217, 102 S.Ct. 940.
I do not minimize the duty of the trial judge to be vigilant to juror misconduct. I do, however, believe that we must pay more than lip service to the commands of *488AEDPA. The Supreme Court has rather clearly said that alleged juror misconduct and the response of the trial judge cannot be evaluated in a vacuum. We need to be mindful of the context in which the trial judge is operating and to keep our eyes on the facts which are at issue. This trial judge was not asleep at the wheel, and the Wisconsin Court of Appeals was not so cavalier as the majority would have us believe. As far as I can see, the panel of jurors that heard this case — especially given the fact that young Oswald never contested his physical participation in this insane crime spree — was not poisoned. My colleagues’ conclusion to the contrary is regrettable. I respectfully dissent.