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Tuesday, March 28, 2006
Ind. Decisions - Supreme Court refuses to reinstate Anderson man's murder conviction
The AP reports today, via the Louisville Courier Journal:
WASHINGTON -- The U.S. Supreme Court refused yesterday to consider reinstating the conviction and death sentence of a man who spent more than 20 years on Indiana's death row.Here is the 7th Circuit's March 23, 2005 opinion in the case of Wisehart v. Davis. Judge Posner's opinion concludes:
The 7th Circuit U.S. Court of Appeals in Chicago last year overturned the 1983 murder conviction of Mark Allen Wisehart of Anderson. It ruled that a trial judge should have taken steps to determine whether one juror's knowledge of a polygraph test had tainted the verdict.
The state attorney general's office had appealed to the U.S. Supreme Court, but the justices declined without comment to review the case. * * *
In an affidavit presented during a 1994 appeal hearing, one of the jurors said that she reported for jury duty and was told court would not be held that day because Wisehart was scheduled to take a polygraph test. * * *
The Indiana Supreme Court denied Wisehart's appeal, saying that he had not shown any evidence that a single juror's knowledge of the polygraph test had swayed the entire jury.
But the federal appeals court said that the trial judge should have questioned the juror to determine whether she or any other jurors had been influenced by the knowledge.
The appeals court overturned Wisehart's conviction and directed the state to release him, retry him or conduct a new court hearing to address the issue of jury bias. He is still being held at the Indiana State Prison in Michigan City.
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.