Petition for Writ of Certiorari — Jeremiah D. Edwards, Petitioner v. United States

No. _______

IN THE

SUPREME COURT OF THE UNITED STATES

____________

JEREMIAH D. EDWARDS,

Petitioner,

v.

UNITED STATES,

Respondent.

____________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

____________

PETITION FOR A WRIT OF CERTIORARI

____________

MICHAEL BEST & FRIEDRICH LLP

John C. Scheller, SBN 1031247

Counsel of Record

With assistance from:

S. Edward Sarskas, SBN 1025534

Tanya M. Salman, SBN 1089151

Kurt F. Ellison, SBN 1089940

Mason A. Higgins, SBN 1124805

One South Pinckney Street, Suite 700

Madison, Wisconsin 53703

Phone:

608.257.3501

Fax:

608.283.2275

Email:

jcscheller@michaelbest.com

sesarskas@michaelbest.com

tmsalman@michaelbest.com

kfellison@michaelbest.com

mahiggins@michaelbest.com

Pro Bono Counsel for Petitioner

QUESTION PRESENTED

Is a Government witness’ inappropriate behavior in the courtroom gallery an

improper consideration for a juror?

i

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iv

PETITION FOR A WRITE OF CERTIORARI ............................................................. 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........................ 1

STATEMENT OF THE CASE ....................................................................................... 3

Factual Background ............................................................................................ 4

Procedural Background and Appeal................................................................... 7

REASONS FOR GRANTING THE WRIT .................................................................... 9

I.

The Question of Whether a Jury May Consider the

Behavior/Demeanor of a Witness Has Not Been, But Should Be,

Settled by this Court. ............................................................................... 9

II.

This Petition Presents an Ideal Opportunity to Resolve the

Question Presented. ............................................................................... 12

CONCLUSION AND PRAYER FOR RELIEF ........................................................... 15

ii

APPENDIX………..……………………………………………………………………App. 1

Appendix A

Decision of the United States Court of Appeals for the

Seventh Circuit (United States v. Edwards, 34 F.4th 570

(7th Cir. 2022)).………………………………………………….

App. 2

Appendix B

Decision of the United States District Court for the

Western District of Wisconsin to Exclude Juror No. 11

(excerpt from transcripts from the fourth day of

Petitioner’s trial, 2/13/2020)..…………………………………. App. 20

Appendix C

Discussion and Argument Regarding the Excusal of Juror

No. 11 and Colloquies with Juror No. 11 (excerpt from

transcripts from the third day of Petitioner’s trial,

2/12/2020)………………………………………………………… App. 33

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .................................................................................................. 9

Barber v. Page,

390 U.S. 719 (1968) ................................................................................................ 10

California v. Green,

399 U.S. 149 (1970) ................................................................................................ 10

Kansas v. Ventris,

556 U.S. 586 (2009) .................................................................................................. 9

Levingston v. Terhune,

No. C-02-01969 RMW, 2006 U.S. Dist. LEXIS 68254 (N.D. Cal.

Sept. 7, 2006) .......................................................................................................... 12

Maryland v. Craig,

497 U.S. 836 (1990) ................................................................................................ 10

Paredes-Urrestarazu v. United States INS,

36 F.3d 801 (9th Cir. 1994) ...................................................................................... 9

Perry v. New Hampshire,

565 U.S. 228 (2012) .................................................................................................. 9

Ramos v. Louisiana,

590 U.S. ___, 140 S. Ct. 1390 (2020) ........................................................................ 3

Reagan v. United States,

157 U.S. 301 (1895) .......................................................................................... 10, 11

Russell v. United States,

288 F.2d 520 (9th Cir. 1961) .................................................................................. 11

Stevenson v. United States,

162 U.S. 313 (1896) .................................................................................................. 9

United States v. Calabrese,

No. 02 CR 1050, 2008 U.S. Dist. LEXIS 29291 (N.D. Ill. Apr. 10,

2008)........................................................................................................................ 11

iv

United States v. Edwards,

34 F.4th 570 (7th Cir. 2022) ..................................................................................... 1

United States v. Gaudin,

515 U.S. 506 (1995) .................................................................................................. 3

United States v. Mendoza,

522 F.3d 482 (5th Cir. 2008) .................................................................................. 11

United States v. Scheffer,

523 U.S. 303 (1998) .................................................................................................. 9

United States v. Schipani,

293 F. Supp. 156 (E.D.N.Y. 1968) .......................................................................... 11

United States v. Schuler,

813 F.2d 978 (9th Cir. 1987) (Hall, C.J., dissenting) ............................................ 11

United States v. Thomas,

116 F.3d 606 (2d Cir. 1997) ...................................................................................... 3

Waller v. United States,

179 F. 810 (8th Cir. 1910) ...................................................................................... 10

STATUTES

18 U.S.C. § 922(g)(1) ...................................................................................................... 7

18 U.S.C. § 924(c)(1) ...................................................................................................... 7

18 U.S.C. § 1951 ............................................................................................................. 7

21 U.S.C. § 841(a)(1) ...................................................................................................... 7

28 U.S.C. § 1254(1) ........................................................................................................ 1

OTHER AUTHORITIES

7th Cir. Pattern Crim. J.I. § 3:01 ................................................................................ 12

Sixth Amendment ........................................................................................................ 14

Demeanor, Black’s Law Dictionary (11th ed. 2019) ..................................................... 9

Fed. R. Evid. 615 ............................................................................................................ 2

H. Underhill, Criminal Evidence § 125 n. 9 (5th ed. 1956) ........................................ 11

v

2 J. Wigmore, Evidence § 274 (J. Chadbourn rev. ed. 1979) ...................................... 11

James P. Timony, Demeanor Credibility,

49 Cath. Univ. L. Rev. 903, 904 (2000) .................................................................... 9

2 James Wilson, Lectures on Law, in The Works of the Honourable

James Wilson 371 (Bird Wilson ed., Phila., Lorenzo Press 1804) .......................... 3

Jerome Michael & Mortimer J. Adler, Real Proof, 5 Vand. L. Rev. 344,

365 (1952) ................................................................................................................. 9

Supreme Court Rule 13.1 .............................................................................................. 1

United States Constitution, Amendment VI ................................................................ 1

vi

PETITION FOR A WRITE OF CERTIORARI

Petitioner Jeremiah D. Edwards (“Mr. Edwards”) respectfully petitions this

Court for a writ of certiorari to review the judgment of the United States Court of

Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The Seventh Circuit’s published opinion affirming the judgment of United

States District Court for the Western District of Wisconsin is reported as United

States v. Edwards, 34 F.4th 570 (7th Cir. 2022) and attached hereto as Appendix A.

A transcript of the district court’s verbal ruling excusing Juror No. 11, the underlying

basis for this petition, is attached hereto as Appendix B.

JURISDICTION

The Seventh Circuit entered its decision on May 16, 2022. Mr. Edwards

respectfully invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1), having filed

this petition pursuant to Supreme Court Rule 13.1.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the state and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

1

Fed. R. Evid. 615:

At a party’s request, the court must order witnesses excluded so that they

cannot hear other witnesses’ testimony. Or the court may do so on its own.

But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being

designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the

party’s claim or defense; or

(d) a person authorized by statute to be present.

2

STATEMENT OF THE CASE

The Constitution requires a jury to reach a unanimous guilty verdict to convict.

Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390, 1397 (2020). The jury system

protects the accused by establishing a critical division of labor between the judge and

the jury. Although the judge’s role is “to instruct the jury on the law and to insist that

the jury follow his instructions,” it remains “the jury’s constitutional responsibility”

both “to determine the facts” and “to apply the law to those facts [to] draw the

ultimate conclusion of guilt or innocence.” United States v. Gaudin, 515 U.S. 506, 51314 (1995). As an inaugural justice of the Supreme Court insisted long ago, “[i]t is of

the greatest consequence . . . that the powers of the judges and jury be kept distinct:

that the judges determine the law, and that the jury determine the fact. This wellknown division between their provinces has been long recognised and established.” 2

James Wilson, Lectures on Law, in The Works of the Honourable James Wilson 371

(Bird Wilson ed., Phila., Lorenzo Press 1804).

“[T] remove a juror because he is unpersuaded by the Government’s case is to

deny the defendant his right to a unanimous verdict.” United States v. Thomas, 116

F.3d 606, 621 (2d Cir. 1997).

In this case, the district court denied Mr. Edwards his right to a unanimous

verdict by removing Juror No. 11 for considering the behavior of a Government

witness sitting in the courtroom gallery. Indeed, on the third day of Mr. Jeremiah

Edwards’ four-day trial, Juror No. 11 testified, and the Government witnesses

admitted that they had engaged in inappropriate conduct (i.e., coaching) while one of

3

them was testifying. Instead of sanctioning the Government for the inappropriate

conduct, the district court excused Juror No. 11.

This petition presents the question of whether during deliberations, a juror

may consider the behavior of a Government witness in the courtroom gallery.

Factual Background

During the morning session of the third day of Mr. Edwards’ trial, City of

Madison Police Department (hereinafter, “MPD”) Detective Caleb Johnson, a

Government witness, took the stand to testify. (See App. 35-38). MPD Detective Leslie

Keith, another government witness, previously testified before Detective Johnson

and remained in the courtroom gallery after giving her testimony. (App. 38).

After the morning session concluded, Juror No. 11, reported to a court security

officer that he had seen Detective Keith appear to coach Detective Johnson from the

gallery during his testimony. (App. 37). When the district court questioned Juror No.

11, a former police officer, (App. 29), about what he had seen, the juror explained that

Detective Keith, who was in “direct line of sight” with Detective Johnson, “was

making animated facial gestures, shaking her head, nodding her head.” (App. 38)

Juror No 11 clarified that Detective Keith would nod or shake her head “prior to

[Detective Johnson] actually answering the question.” (App. 39). To the juror, it

looked like the detectives “were trying to communicate from the audience.” (App. 39).

The district court judge did not personally observe Detective Keith’s behavior, (App.

27), and Juror No. 11 had not told anyone besides the court security officer and the

court what he had seen. (App. 39).

4

Mr. Edwards subsequently moved for a mistrial, (App. 41), which the district

later denied, stating:

“I just don't think the conduct really rises to that level, and I don't think it was

-- you haven't really specifically mentioned it, but I don't think it was so

noticeable -- again, I said that I didn't observe it, which certainly it

happened because she admitted it, but I also don't think it was so

outrageous that it is inevitably going to taint the entire jury’s consideration of

the matter, so I'll deny your motion both for a mistrial and for dismissal as a

sanction.”

(App. 27) (emphasis added).

After Mr. Edwards moved for a mistrial, the district court recalled Juror No.

11 and questioned him extensively as to whether he could still be impartial:

THE COURT: Bring him in. Yeah, come on back up. There’s one follow-up

question that I neglected to ask you when we were here before.

JUROR [NO. 11]: Yes, sir.

THE COURT: It’s really this: Given what you have observed do you think it

will affect your decision-making in this case? Can you still be fair to both sides

and judge the case based on the evidence presented here in court, which does

not include any of the miscellaneous activities in the gallery? That’s not

evidence. So can you still be fair to both sides and focus your attention on the

evidence that’s been presented and decide the case on that basis?

JUROR [NO. 11]: I believe that what I observed may affect my opinion

as to the credibility of the witnesses.

THE COURT: Mm-mm.

JUROR [NO. 11]: But overall, I do not believe that it would affect my

ability to be fair and impartial in the trial.

THE COURT: Okay. I’m going to ask you -- I’m going to instruct you to

disregard what you saw behind the bar. And I know sometimes it’s hard to

disregard something that you’ve actually seen. But I can’t have you decide the

case if you’re going to be affected by that activity which is not evidence. And if

you think that it’s still going to affect you, I’d excuse you.

JUROR [NO. 11]: I believe I understand what you’re asking me Judge. And if

you’re asking me to disregard what I saw from behind the wall there -THE COURT: Yep.

5

JUROR [NO. 11]: -- then I will follow your instructions.

THE COURT: Okay. And you think you can effectively do that and decide the

case based on the evidence, which is only on this side of the bar?

JUROR [NO. 11]: Yes, sir.

(App. 44-45) (emphasis added).

The Government subsequently moved to strike Juror No. 11 for bias. (App. 46)

(“I think that most definitely he’s got bias and I’d ask that he be struck.”) The district

court reflected, “I think [Juror No. 11’s] being honest and completely forthcoming.”

(App. 47). But the district court withheld its ruling to “hear from the detectives.” (App.

47). After questioning the detectives, the district court concluded that Detective

Johnson’s testimony was not affected by Detective Keith. (App. 49) (“I can’t see any

answer that Detective Johnson gave that would have actually been affected by the

coaching[.]”) The district court then struck Juror No. 11 from the panel, concluding:

I'm also not happy to have to strike this juror because he got a bad attitude

about the government from the conduct of the government's witnesses. But I'm

going to strike the juror because I do think he's got that abiding concern that

his view of the credibility of the testimony is affected.

And I think it’s unfortunate that the juror that is sympathetic to Mr. Jones’s

[trial counsel for Mr. Edwards] case is the one that gets struck, because, you

know, if it were just a matter of what side it involved, it's the government's

side that’s at fault for it.

(App. 49-50). Both Mr. Edwards’ counsel and Mr. Edwards himself requested the

district court reconsider Juror No. 11’s fate, which the district court did overnight.

(App. 50-55).

6

The following morning, the court admonished the Government, “[i]t is true that

it was the misconduct of a government witness that leads us to this situation with

the jury”, while praising Juror No. 11:

“He has been a model of integrity as far as I’m concerned because he spoke up

about something he saw that was improper, he answered my questions

honestly, and I believe that he sincerely believes that he could decide this case

fairly, so I have nothing but respect for that juror.”

(App. 23-24). Still, the court excused Juror No. 11 due to “misgivings about whether

he would be able to put [the coaching] out of his mind”, which the district court stated

was “an improper consideration, even if it was the government’s witness misconduct

that led to this situation.” (App. 23-24). The jury ultimately convicted Mr. Edwards.

Procedural Background and Appeal

A grand jury charged Mr. Edwards by indictment with the following five

counts: (i) interference with commerce by threats or violence in violation of 18 U.S.C.

§ 1951; (ii) brandishing a firearm in relation to a crime of violence in violation of 18

U.S.C. § 924(c)(1); (iii) possessing a firearm as a felon in violation of 18 U.S.C. §

922(g)(1); (iv) possessing marijuana with intent to distribute marijuana in violation

of 21 U.S.C. § 841(a)(1); and (v) possessing a firearm while in possession of marijuana

with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). The district court

entered final judgment on November 20, 2020.

Mr. Edwards filed his notice on appeal on November 27, 2020. On appeal, Mr.

Edwards, via pro bono counsel, raised seven issues including “[w]hether the district

court erred by . . . excusing Juror No. 11 . . . after Juror No. 11 advised the court that

the Government’s witness . . . was being improperly coached on the witness stand.”

7

The United States Court of Appeals for the Seventh Circuit affirmed the district

court’s judgment in full. (App. 19).

With respect to dismissing Juror No. 11, the appellate court observed that “the

district court believed the cloud of bias remained . . . [and] concluded that the juror’s

continued service on the jury risked tainting the trial and deliberations.” (App.16).

Accordingly, the district court “did not abuse its discretion in excusing Juror No. 11.”

(App. 17). The Seventh Circuit did not discuss whether dismissing Juror No. 11

prejudiced Mr. Edwards. (See App. 16-17).

Mr. Edwards now petitions this Court for review.

8

REASONS FOR GRANTING THE WRIT

I.

The Question of Whether a Jury May Consider the

Behavior/Demeanor of a Witness Has Not Been, But

Should Be, Settled by this Court.

The district court determined, and the appellate court affirmed that Detective

Keith’s demeanor while in the courtroom gallery—coaching a witness on the stand—

was an improper consideration for the jury. As a result, the district court excused

Juror No. 11. But whether Detective Keith’s demeanor in the courtroom gallery is a

proper consideration for the jury has not, but should be, settled by this Court.

There is no doubt that witness credibility is a determination for the jury. See,

e.g., Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986); Perry v. New Hampshire, 565 U.S. 228, 237 (2012);

Stevenson v. United States, 162 U.S. 313, 316 (1896); United States v. Scheffer, 523

U.S. 303, 336 (1998). And credibility and demeanor are inextricably intertwined in

the American legal tradition. See James P. Timony, Demeanor Credibility, 49 Cath.

Univ. L. Rev. 903, 904 (2000) (“For hundreds of years, . . . juries have decided the

credibility of testimony on the demeanor of the witness.”). “Demeanor, whether that

of a witness while testifying or of a person who is not giving testimony, is . . . a kind

of event . . . which always occurs in the presence of a jury and is sensibly apparent to

it.” Jerome Michael & Mortimer J. Adler, Real Proof, 5 Vand. L. Rev. 344, 365 (1952).

Specifically, demeanor is “[o]utward appearance or behavior, such as facial

expressions, tone of voice, gestures, and the hesitation or readiness to answer

questions.” Demeanor, Black’s Law Dictionary (11th ed. 2019). Accord Paredes-

9

Urrestarazu v. United States INS, 36 F.3d 801, 818 (9th Cir. 1994) (providing that a

witness’s demeanor includes “the expression of his countenance, how he sits or

stands, whether he is inordinately nervous, his coloration during critical

examination, the modulation or pace of his speech and other non-verbal

communication.”) Indeed, case law has confirmed that jurors may consider a witness’s

demeanor on the witness stand. See, e.g., California v. Green, 399 U.S. 149, 158

(1970) (observing that the Confrontation Clause permits the jury “to observe the

demeanor of the witness in making his statement”) (emphasis added); Maryland

v. Craig, 497 U.S. 836, 842 (1990); Barber v. Page, 390 U.S. 719, 725 (1968).

But this Court has not examined whether a witness’s demeanor while

otherwise in the courtroom may be considered. Courts that have discussed

whether a jury may consider courtroom demeanor have focused only on criminal

defendants. First, in Reagan v. United States, this Court quoted with approval a jury

instruction to consider the defendant’s “demeanor and conduct upon the witness

stand and during the trial.” 157 U.S. 301, 308-09 (1895) (emphasis added). Fifteen

years later, the Eighth Circuit more explicitly held that a jury may consider “a

defendant’s demeanor in the courtroom while undergoing a trial for crime.” Waller v.

United States, 179 F. 810, 812 (8th Cir. 1910).

More recently, the Ninth Circuit commented that “[t]he trial judge can see in

the conduct and demeanor of one who testifies (or even in the conduct and

demeanor of defendants who never take the witness stand, as the defendants

did not here) a thousand and one matters impossible for a reviewing court to glean. .

10

..” Russell v. United States, 288 F.2d 520, 522 (9th Cir. 1961) (emphasis added). And

the dissent observed that sound policy reasons exist for allowing the jury to consider

the defendant’s courtroom demeanor. See United States v. Schuler, 813 F.2d 978, 983

(9th Cir. 1987) (Hall, C.J., dissenting). And see United States v. Mendoza, 522 F.3d

482, 491 n.2 (5th Cir. 2008) (disagreeing with Judge Hall in Schuler but conceding

“the inevitability of jurors’ noticing courtroom demeanor and actions.”)

Other authorities discussing this issue have focused on the practicality of

preventing juries from considering courtroom demeanor. See, e.g., 2 J. Wigmore,

Evidence § 274 (J. Chadbourn rev. ed. 1979) (“the attempt to force a jury to become

mentally blind to the behavior of the accused sitting before them involves both an

impossibility in practice and a fiction in theory”); H. Underhill, Criminal Evidence §

125 n. 9 (5th ed. 1956) (“it is impossible to prevent jurors from observing the

appearance and behavior of the accused very closely while he is in court during the

trial”); Michael & Adler, supra, at 365 (“[demeanor] need not be offered and cannot

be excluded.”)

Since this Court opened the door in Reagan, at least three circuits have

observed (or conceded) that a defendant’s courtroom demeanor is subject to the jury’s

scrutiny. Accordingly, at present, “[i]t is axiomatic that there is nothing improper

about a jury observing a defendant’s courtroom demeanor during trial.” United States

v. Calabrese, No. 02 CR 1050, 2008 U.S. Dist. LEXIS 29291, at *11 (N.D. Ill. Apr. 10,

2008). See United States v. Schipani, 293 F. Supp. 156, 163 (E.D.N.Y. 1968)

(“observation of the non-witness defendant’s demeanor and general appearance may

11

be—and almost invariably is—considered”); Levingston v. Terhune, No. C-02-01969

RMW, 2006 U.S. Dist. LEXIS 68254, at *19 (N.D. Cal. Sept. 7, 2006) (“[i]t is well

settled that a defendant’s courtroom demeanor is evidence”). However, no authority

exists as to whether the jury may consider a non-defendant witness’s courtroom

behavior.

As such, whether a jury may consider the behavior of a non-defendant witness

should be settled by this Court.

II.

This Petition Presents an Ideal Opportunity to

Resolve the Question Presented.

The underlying facts of the instant case make this petition an ideal vehicle for

resolving this important question. First, it should be noted that the district court’s

jury instructions, which are based upon the Seventh Circuit’s pattern jury

instructions, specifically implore jurors to “consider any other factors that shed light

on the believability of each witness’s testimony.” (R.224 at 5-6). See 7th Cir. Pattern

Crim. J.I. § 3:01. Had Juror No. 11 not brought Detective Keith’s courtroom demeanor

(her coaching Detective Johnson) to the district court’s attention, he may have

reasonably felt empowered by this instruction to share what he saw with his fellow

jurors during deliberations. Certainly, Detective Keith’s willingness to engage in

conduct which Juror No. 11 recognized to be inappropriate, (App. 39), could shed light

on Detective Keith’s credibility. Similarly, Detective Keith’s decision to coach her

colleague could shed light on Detective Johnson’s credibility, including his

preparedness and knowledge of the facts to which he testified. By resolving the

question presented, this Court can avoid future confusion.

12

Second, the district court unequivocally found that Detective Keith engaged in

misconduct. Before excusing Juror No. 11, the district court specifically acknowledged

“it was the misconduct of a government witness that leads up to this situation.” (App.

23). While the district court observed Detective Keith’s behavior did not affect

Detective Johnson’s testimony, he explicitly referred to her behavior as “coaching.”

(App. 49). While the question of whether a witness’s courtroom demeanor may be

considered by the jury is worthy of this Court’s attention, the question of whether a

witness’s courtroom misconduct may be considered for its effect on her credibility

certainly demands an answer.

Finally, the equities at stake here beg for this Court’s review. Without

surveying Mr. Edwards’ jury panel (which reached its verdict over two years ago),

Juror No. 11 is the only juror who can be said to have witnessed Detective Keith’s

behavior. The district court did not notice the coaching, (App. 35), and Juror No. 11

was instructed not to share what he had seen with anyone else. (App. 39).

Accordingly, and as Mr. Edwards’ trial counsel pointed out, excusing Juror No. 11

could be perceived as “an award for bad behavior.” (App. 50). Surely, with Juror No.

11 excused, it is extremely unlikely that the jury was able to consider Detective

Keith’s misconduct for whatever effect it may have had on her credibility. Mr.

Edwards himself asked the district court, “your honor, why are we being punished?”

(App. 51).

Juror No. 11 was excused because the district court feared he would not be able

to put Detective Keith’s misconduct out of his mind. (App. 23-24). However, it is

13

unsettled that he should have had to. In fact, without a clear statement form this

Court that criminal defendants’ demeanor should be subject to more scrutiny from

jurors than other witnesses in the courtroom (a notion that seems that would seem

to fly in the face of the Sixth Amendment), that position seems untenable. Yet, on

appeal, the Seventh Circuit failed to reach the issue. With scarce other commentary

on the issue, the appellate court affirmed the district court’s judgment after agreeing

that, despite Juror No. 11’s replete insistence, (App. 45), that he could disregard what

he had seen, “the cloud of bias remained.”

14

CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, the Court should grant the Petition.

Respectfully submitted August 16, 2022,

/s/ John C. Scheller

John C. Scheller, SBN 1031247

Counsel of Record

With assistance from:

S. Edward Sarskas, SBN 1025534

Tanya M. Salman, SBN 1089151

Kurt F. Ellison, SBN 1089940

Mason A. Higgins, SBN 1124805

MICHAEL BEST & FRIEDRICH LLP

One South Pinckney Street, Suite 700

Madison, Wisconsin 53703

Phone:

608.257.3501

Fax:

608.283.2275

Email:

jcscheller@michaelbest.com

sesarskas@michaelbest.com

tmsalman@michaelbest.com

kfellison@michaelbest.com

mahiggins@michaelbest.com

Pro Bono Counsel for Petitioner

15